Summary
correcting a statement of the law from an opinion of the Court of Civil Appeals regarding custody modifications by omitting the word `adversely'
Summary of this case from Ex Parte BlackstockOpinion
SC 1111.
March 13, 1975.
Appeal from the Circuit Court, Lee County.
Richard D. Lane, Auburn, James T. Gullage, Opelika, for petitioner.
The question of paramount concern in any custody proceeding or modification of a prior divorce decree as to the custody of a child, is the welfare of the child. Wood v. Wood, 276 Ala. 90, 159 So.2d 448. The petitioner in a modification for custody case does not in fact have to show that the welfare and best interest of the child is adversely affected to such an extent that a change of custody is warranted or required but merely has to show that a change of circumstances, which are material, are such as to affect the welfare and best interest of the child. Ponder v. Ponder, 50 Ala. App. 217, 276 So.2d 613.
No brief for respondent.
The trial court denied a petition for modification of a decree of custody which granted the custody of a girl child to her father with the mother having the child on alternate weekends.
The Court of Civil Appeals considered three asserted errors and affirmed the decree of the trial court. 54 Ala.App. ___, 310 So.2d 230.
Petitioner raises three points in her petition for writ of certiorari. Two are without merit, but the third raises a valid question but not one sufficiently prejudicial to require the granting of the writ of certiorari.
In its opinion, the Court of Civil Appeals states:
"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. Ponder v. Ponder, 50 Ala. App. 27, 276 So.2d 613." (Emphasis supplied.)
Petitioner correctly argues that the use of the word "adversely" limits the law as stated in our cases. The Ponder case, cited supra, does not contain the word "adversely," and the opinion in Ponder cites Greene v. Greene, 249 Ala. 155, 30 So.2d 444. In Greene, this court quoted with approval a portion of a quotation from Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 40 L.R.A. 623, the latter part of which reads: "* * * the parent will not be permitted to reclaim the custody of the child, unless he can show that a change of the custody will materially promote his child's welfare." (Emphasis supplied).
The rule is correctly stated in Ponder, supra, as follows:
"It is axiomatic to review of decrees of modification as to custody of children that such a decree should be entered only upon proof of a material change of circumstances of the parties since the prior decree, which change of circumstances is such as to affect the welfare and best interest of the child or children involved. Greene v. Greene, 249 Ala. 155, 30 So.2d 444. A prior decree of custody is assumed correct and in the absence of proof of changed conditions or other substantial reason for its modification it should not be disturbed. The burden of showing a change of circumstances which affects the best interest and welfare of the children is upon the petitioner. Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797; Sparks v. McGraw, 270 Ala. 159, 117 So.2d 372."
We approve the quoted paragraph from the opinion in the instant case with the omission of the word "adversely."
The opinion of the Court of Civil Appeals is corrected and the petition for writ of certiorari is denied.
Opinion corrected and writ denied.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.