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February 10, 1995


Appeal from Jefferson Circuit Court. (DR-92-1299). John C. Calhoun, Trial Judge.

Released for Publication May 24, 1995.

Yates, Judge. Robertson, P.j., and Thigpen, Monroe, and Crawley, J.j., concur.

The opinion of the court was delivered by: Yates

YATES, Judge

On July 16, 1992, pursuant to an agreement between the parties that was incorporated into their final divorce judgment, the trial court awarded the father primary custody of their two children and issued an income withholding order requiring the mother to pay $173 per month child support. Four months later, the father petitioned the court to issue another income withholding order to be served on the mother's new employer. In December 1992, the trial court found that the mother was $1,211 in arrears, and it issued an order of continuing income withholding for support, directing the employer to withhold $173 per month for current support and maintenance of the children and, further, to withhold $100 per month to be applied toward the arrearage.

On November 30, 1993, the father petitioned for a rule nisi, seeking payment of a child support arrearage and payment of unpaid debts that the mother had been ordered to pay in the original divorce judgment. He also sought an award of an attorney fee and a modification to increase child support. The mother answered and counterclaimed, seeking a modification of the divorce judgment to award her primary custody of the children or, in the alternative, increased visitation.

On March 31, 1994, after an ore tenus proceeding, the trial court found that the mother was $2,081 in arrears; that arrearage is being paid. The trial court increased the mother's child support obligation to $378 per month and "ratified and confirmed" all other provisions of the divorce judgment. The mother appeals, contending that the trial court erred (1) in failing to award her primary custody or increased visitation and (2) in increasing her obligation to pay child support.

It is well settled that the judgment of a trial court in a divorce case in which the evidence is presented ore tenus is entitled to a presumption of correctness and that it will not be reversed on appeal unless it is so unsupported by the evidence as to be an abuse of discretion. Jenkins v. Jenkins, 541 So.2d 19 (Ala. Civ. App. 1989). "This rule applies in reviewing child custody cases and requires a showing that the trial court abused its discretion and was plainly and palpably wrong." Id. at 20.

The parent seeking a custody modification "must show not only that [he or] she is fit, but also that the change of custody 'materially promotes' the child's best interest and welfare." Ex parte McLendon, 455 So.2d 863, 866 (Ala. 1984). "The evidence must be so substantial as to disclose an obvious and overwhelming necessity for a change. This requires a showing that the positive good brought about by the change of custody will more than offset the inherently disruptive effect caused by uprooting the child." Klapal v. Brannon, 610 So. 2d 1167, 1169 (Ala. Civ. App. 1992) (citations omitted).

Where the parties agree to joint legal custody and shared physical custody of the children without a judicial determination preferring either parent, "custody [is] appropriately determined by the trial court according to what [is] in the 'best interest' of the children." Ex parte Couch, 521 So.2d 987, 989 (Ala. 1988). However, where the parents have joint legal custody, but a previous judicial determination grants primary custody to one parent and secondary custody to the other, "the trial court [is] correct in applying the McLendon standard and requiring the [parent] to show that a change in custody would materially promote the welfare and best interests of the child, offsetting the disruptive effect of uprooting the child." Blackmon v. Scott, 622 So.2d 393, 394 (Ala. Civ. App. 1993).

The mother argues that the best interest of the child standard of Couch should apply, because, she says, she believed, based upon representations she says were made to her by the father's attorney and based upon the language of the divorce agreement, that "she was signing a true joint custody agreement" and that "she would be on equal footing with the [father] in terms of custody and visitation."

The amended agreement that was incorporated into the final divorce judgment states:

"The Husband shall be designated as the primary custodian and the Wife shall be the secondary custodian of the minor children. The children shall reside in the physical custody and residence of the father at all times of his period of primary custody. The children shall reside with the mother during the following periods of secondary custody ...."

The agreement then sets out the periods of secondary custody, allowing the mother 2 weekends each month, 30 days during the summer, birthdays and certain holidays, and "such other times as are agreed upon between the parties." Further, the agreement provides that if a disagreement arises between the parties as to any aspect of the children's activities, "the primary custodian is ... designated as having ...

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