Ares v. Martinez

Full title: Lynda Mae Martinez ARES v. Gil MARTINEZ

Court: Court of Civil Appeals of Alabama

Date published: May 6, 1994

638 So. 2d 3 (Ala. Civ. App. 1994)

Opinion

AV93000124.

May 6, 1994.

Appeal from the Circuit Court, Limestone County, George T. Craig, J.

Lynda Mae Martinez Ares, pro se.

No brief for appellee.

RICHARD L. HOLMES, Retired Appellate Judge.

This case has been before this court on two previous occasions. See Ares v. Martinez, 611 So.2d 1086 (Ala.Civ.App. 1992) ( Ares II), and Ares v. Martinez, 589 So.2d 750 (Ala.Civ.App. 1991) ( Ares I).

At the outset, we would note that the following occurred in Ares II: The father filed a petition to modify, alleging that there had been a material change in circumstances sufficient to warrant the trial court to enter an order requiring the mother to pay child support in accordance with the Child Support Guidelines, Rule 32, A.R.Jud.Admin. The mother filed a counter-petition, alleging a change in circumstances sufficient to warrant a change in custody of the parties' minor child. The trial court determined that a substantial change in circumstances had occurred and ordered the mother to pay $321 per month in child support. The trial court denied the mother's counter-petition, which requested that the trial court award custody to her. The mother appealed. This court affirmed the trial court's determination regarding the issue of the modification of child custody and reversed the trial court's determination regarding the issue of the modification of child support.

In the present case the scenario described in Ares II has recurred. The mother appeals from the trial court's order which denied her counterclaim for modification of custody and which directed her to pay $230.67 per month in child support.

We have reviewed the record, and in line with our reasoning in Ares II, we find that neither party has met his or her burden of demonstrating that a substantial change in circumstances has occurred.

Consequently, the trial court's judgment is affirmed in regard to the issue of modification of custody and reversed in regard to the issue of modification of child support. This cause is remanded with instructions for the trial court to enter an order consistent with this opinion.

The foregoing opinion was prepared by Retired Appellate Judge RICHARD L. HOLMES while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

All the Judges concur.