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Warnick v. Couey, 359 So.2d 801

Facts

The parties were divorced in 1974, with custody of their minor child awarded to the father. The mother later petitioned for custody, citing her remarriage, her role as a full-time homemaker, and the father's disability due to a serious accident. The trial court conducted a hearing and ultimately refused to modify the custody arrangement, noting that the child had been living with the father and his parents for several years and was well-adjusted.

The parties were divorced in 1974. The Circuit Court of Morgan County awarded custody of their minor child to the father. The mother appealed that decision to this court. In April of 1975, this court affirmed the trial court's decision awarding custody of the child to the father. For a better understanding of the prior facts and our decision in the instant appeal, reference should be had to Couey v. Couey, 54 Ala.App. 602, 311 So.2d 322 (1975).

Issue

Whether the trial court abused its discretion in refusing to change custody.

The dispositive issue on appeal is whether the trial court abused its discretion in refusing to change custody.

Rule

In order to support a petition for modification of custody, the petitioner must produce evidence of a material change of circumstances of the parties occurring since the last prior decree which adversely affects the welfare and best interest of the child to such an extent that a change in custody is warranted or required.

In order to support a petition for modification of custody, the petitioner must produce evidence of a material change of circumstances of the parties occurring since the last prior decree which adversely affects the welfare and best interest of the child to such an extent that a change in custody is warranted or required.

Analysis

The court analyzed the evidence presented and determined that while the mother's circumstances had changed, the father's ability to care for the child had not diminished. The child was well-adjusted, thriving in her current environment, and there was no evidence to suggest that the changes in circumstances adversely affected her welfare. Therefore, the court upheld the trial court's decision.

Put another way, clearly the wife's situation has changed considerably since the divorce. She is to be admired for bringing about some of these changes. Just as clear is the fact that while the husband's physical condition has greatly changed, his love and ability to care for the child has not changed. More to the point is the fact that the child is well adjusted and does not appear to be adversely affected by any of the changes. Hence, we cannot reverse.

Conclusion

The court affirmed the trial court's decision, concluding that there was no abuse of discretion in denying the modification of custody.

The case is due to be and is hereby affirmed.

Who won?

The ex-husband prevailed in the case because the court found that the mother did not meet the burden of proving a material change in circumstances that would justify a change in custody.

The trial court held an extensive ore tenus hearing and, as indicated above, refused to modify the custody.

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