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03/17/95 EVELYN E. FLANAGAN v. MICHAEL E. FLANAGAN

March 17, 1995

EVELYN E. FLANAGAN
v.
MICHAEL E. FLANAGAN



Appeal from Elmore Circuit Court. (DR-92-102.01).

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

The opinion of the court was delivered by: Crawley

CRAWLEY, Judge

This is a post-divorce modification case.

The parties were divorced in April 1992. Pursuant to an agreement incorporated into the divorce judgment, the mother received custody of the parties' then 18-month-old daughter, Meagan, and the father was given "reasonable rights of visitation . . . at such times and places as the parties may agree, provided, however, that until the child reaches six (6) years of age, the husband shall not have unsupervised overnight visitation." The agreement specified that "supervised visitation" was "visitation in conjunction with the paternal grandparents of the minor child or her aunt(s) and uncle(s)."

In August 1993, the father filed a petition to modify the divorce judgment, seeking, among other things, unsupervised visitation with the child one weekend per month. Two months later, the father filed a contempt petition, alleging that the mother was willfully and deliberately preventing his visitation with the child. The father also requested, and the trial court subsequently ordered, unsupervised weekend visitation pending trial.

Following an ore tenus proceeding on the merits of the father's petition to modify, the trial court granted the petition and ordered that the father was to have unsupervised visitation one weekend per month, one month during the summer, and one week during the Christmas holidays. The court relieved the father of his obligation to make a child support payment in the summer month during which the father had visitation with the child, and gave the father the right to claim the federal income tax dependency exemption for the child "for the year 1994 and each year thereafter as long as this Order remains in effect."

The mother appeals, claiming that the trial court erred (1) by modifying the visitation provision of the judgment without a showing of a material change in circumstances, (2) by establishing a schedule of holiday visitation that requires the child to travel on Christmas Day, (3) by abating the father's child support payment for the summer month during which he has visitation with the child, and (4) by giving the father the federal tax exemption for the child.

The trial court has broad discretion in deciding on visitation rights of the noncustodial parent. Wallace v. Wallace, 485 So. 2d 740 (Ala. Civ. App. 1986). This discretion applies to modification proceedings as well as to the original custody proceeding. Id. "When the issue of visitation is determined after oral proceedings, the trial court's determination of the issue will not be disturbed absent an abuse of discretion or a showing that it is plainly in error. Andrews v. Andrews, 520 So. 2d 512 (Ala. Civ. App. 1987)." Dominick v. Dominick, 622 So. 2d 402, 403 (Ala. Civ. App. 1993).

The record indicates that at the time of the divorce, the father was not comfortable caring for an 18-month-old infant without assistance, and he had relied on his parents to help him with the child. However, since the divorce, the child's paternal grandfather had died and the paternal grandmother's health had deteriorated. The father remarried. His present wife has a daughter, and they have established a secure family life together. Meagan, who was 18 months old at the time of the divorce, was slightly older than 3 years when the petition to modify was filed.

From the record before us, we cannot hold that the trial court plainly erred by determining that the father had established a material change in circumstances. See Durham v. Heck, 479 So. 2d 1292 (Ala. Civ. App. 1985). The record supports the court's determination that a modification of visitation was in the best interest of the child. Id.

The mother claims that the court's establishing a schedule of holiday visitation that requires the child to travel on Christmas Day was not in the best interest of the child. She complains that the court's visitation order compels the child to spend a good part of Christmas Day being driven between her parents' homes, and prevents her from having any meaningful time with either parent on that day.

The court's order provided that the child was to be with the mother until 2:00 p.m. on Christmas Day during even-numbered years and with the father until 2:00 p.m. on Christmas Day in odd-numbered years. The record reveals that the father lives in Dadeville and the mother lives in Mobile, and that the driving time between those two cities is four hours.

In outlining holiday visitation, the trial court obviously took into account each party's expressed desire to spend Christmas Day with the child. No doubt the court also considered what is evident from the record: the parties have a great deal of animosity for each other and have been unable to agree on visitation issues in the past. As this court observed ...


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