Appeal from Montgomery Circuit Court. John W. Davis, TRIAL JUDGE. This Opinion Substituted on Grant of Rehearing for Withdrawn Opinion of June 23, 1995, Previously .
Application for Rehearing Overruled September 15, 1995, . Released for Publication March 2, 1996.
Holmes, Retired Appellate Judge. All the Judges concur.
The opinion of the court was delivered by: Holmes
On Application for Rehearing
HOLMES, Retired Appellate Judge
This court's original opinion, which was released on June 23, 1995, is withdrawn, and the following opinion is substituted therefor:
Lycrezia A. Williams Reynolds (mother) appeals from the trial court's order dated January 3, 1995. This order modified the parties' divorce decree and awarded legal and physical custody of the minor children of the parties to Larry D. Williams (father), with visitation rights vested in the mother. The order also provided that the former marital residence was to be sold and that the equity was to be divided in the manner provided in the original divorce decree.
In her first issue the mother contends that the trial court abused its discretion when it modified the divorce decree and awarded custody of the parties' minor children to the father. It is a close question as to whether the trial court abused its discretion when it modified custody.
In our original opinion we determined that the father had failed to meet his stringent burden of proving the following: that a material change of circumstances existed, that a change in custody would materially promote the best interests of the children, and that the benefits resulting from a change in custody would offset any disruptive effect resulting from uprooting the children. See Hepburn v. Hepburn, [Ms. AV93000693, April 7, 1995] So. 2d (Ala. Civ. App. 1995); Jones v. Sprinkle, 621 So. 2d 1341 (Ala. Civ. App. 1993). Consequently, we reversed that portion of the trial court's judgment that awarded primary custody of the children to the father and remanded the case to the trial court for entry of a judgment consistent with our original opinion.
Upon further reflection we find that in our original opinion we substituted our judgment for that of the trial court, which had the opportunity to hear the evidence and to observe the witnesses. Stated another way, if this court were to reverse the trial court's judgment, we would have to substitute our judgment for that of the trial court. This, the law does not permit. Ex parte Travis, 414 So. 2d 956 (Ala. 1982); Grubbs v. Crosson, 634 So. 2d 593 (Ala. Civ. App. 1994).
Our review of the record reveals the following operative facts: The parties have two sons, ages 13 and 15, and a daughter, who is 11 years of age.
The children's grades have fallen since the divorce, and the two boys seem to have the biggest problem in this area. Each of the parties has remarried. The children have a good relationship with the stepmother and a strained relationship with the stepfather. All three children have expressed a desire to reside with the father.
The trial court conducted an in-camera examination of the three children. We do not have a transcript of this meeting between the children and the trial court. However, the trial court indicated the following in its order:
"The children have experienced changes as well. The two boys' grades have worsened at school. The children appear to be less communicative and more introverted since the divorce. All three children experience a strained relationship with their stepfather but enjoy a good relationship with their stepmother. Each of the three [children] expresses an interest in living with [the] father on a permanent basis. The court suspects ...