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08/11/95 EX PARTE RICHARD MURPHY (RE LISA MURPHY v.

August 11, 1995

EX PARTE RICHARD MURPHY (RE: LISA MURPHY
v.
RICHARD O. MURPHY)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS. (Lauderdale Circuit Court, Court of Civil Appeals, AV93000561). Ned Michael Suttle, Lauderdale Circuit Court, TRIAL JUDGE.

Hornsby, C.j., and Maddox, Shores, Houston, Kennedy, Ingram, Cook, and Butts, JJ., concur.

The opinion of the court was delivered by: Per Curiam

PER CURIAM.

The trial court modified the joint custody provisions of a divorce judgment by which the mother had physical custody of a three-year-old male child; the modification awarded the physical custody of the child to the father. The Court of Civil Appeals reversed, holding that the modification was plainly and palpably wrong and ordering that physical custody be returned to the mother. Murphy v. Murphy, [Ms. AV93000561, December 16, 1994] So. 2d (Ala. Civ. App. 1994).

By certiorari petition, the father seeks a reinstatement of the trial Judge's order awarding physical custody to him. We reverse the judgment of the Court of Civil Appeals and remand.

The parties were divorced on June 12, 1992. They agreed to joint custody of their son, with the mother having physical custody and the father having "reasonable and liberal rights of association and visitation." Apparently, the parties were able to communicate and cooperate until 1993, when the mother decided to marry for the third time and take the child to Texas with her. The father petitioned to modify the joint custody provisions to place physical custody with him.

The evidence relating to the father's petition was presented ore tenus. It is settled law that "where evidence is presented ore tenus, a child custody determination is committed to the sound discretion of the trial court, and will not be reversed on appeal absent a finding that the determination is so poorly supported by the evidence as to be plainly and palpably wrong. Ex parte Walters, 580 So. 2d 1352, 1353 (Ala. 1991); Howard v. Howard, 608 So. 2d 753 (Ala. Civ. App. 1992), citing Kellam v. Kellam, 587 So. 2d 355 (Ala. Civ. App. 1991), and Smith v. Smith, 448 So. 2d 381 (Ala. Civ. App. 1984). There is sound reasoning behind this standard, which recognizes the trial court's unique position to observe the parties and to hear their testimony. Lucero v. Lucero, 485 So. 2d 347 (Ala. Civ. App. 1986).

Ex parte McLendon, 455 So. 2d 863, 866 (Ala. 1984), requires that the parent seeking a change in child custody prove that the "change or modification will materially promote the child's best interests, thereby offsetting the disruptive effect of uprooting the child." Ex parte McLendon established a rule of repose:

"'[This] is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child's healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court's satisfaction that material changes affecting the child's welfare since the most recent decree demonstrates that custody should be disturbed to promote the child's best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.'"

455 So. 2d at 865, quoting Wood v. Wood, 333 So. 2d 826, 828 (Ala. Civ. App. 1976).

We have carefully studied the record and the evidence in this case. We do not agree with the Court of Civil Appeals' Conclusion that the trial court's holding was plainly and palpably wrong and that the father had failed to carry the burden of proof set out in Ex parte McLendon. The Court of Civil Appeals stated in Footnote 1 to its opinion that the mother's proposed change in residence would not justify a change in custody, "absent proof that the proposed relocation would adversely affect the child." So. 2d at . Ex parte McLendon expressly rejected the "adversely affect" standard in favor of the standard applied in McLendon. This Court in McLendon noted that the use of the word "adversely" limits the law as stated in our cases, and it reaffirmed the holding in Ford v. Ford, 293 Ala. 743, 310 So. 2d 234 (1975):

"For several years now, the Court of Civil Appeals has stated that the parent seeking custody has the burden of showing a change in circumstances which adversely affect the welfare of the child. Lewis v. Douglass, 440 So. 2d 1073 (Ala. Civ. App. 1983); Simpson v. Gibson, 420 So. 2d 782 (Ala. Civ. App. 1982); Taylor v. Taylor, 387 So. 2d 849 (Ala. Civ. App. 1980); Keith v. Keith, 380 So. 2d 889 (Ala. Civ. App. 1980). This Court, in 1975, expressly rejected that standard in favor of the standard applied today. We held that 'the use of the word "adversely" limits the law as stated in our cases.' Ford v. Ford, 293 Ala. 743, 310 So. 2d 234 (1975). We reaffirm that holding today and further hold that all contrary decisions, including the above-cited ones, are overruled to this extent."

Ex parte McLendon, 455 So. 2d at 866.

The case before us is unusual, in that the father is seeking a change of physical custody for the purpose of preventing the disruptive effect of uprooting the child from a very strong family support network. That network includes the child's maternal and paternal grandparents, as well as paternal great-grandparents, all of whom live in Lauderdale County, Alabama. All four of the child's grandparents testified about their involvement and interaction with this child and the care they have provided to him since his birth. Although a change of residence is only one factor for ...


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