MURDOCK, Judge.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(C), Ala.R.App.P.; Ex parte Monroe, 727 So.2d 104 (Ala. 1999); Ex parte Bryowsky, 676 So.2d 1322 (Ala. 1996); Ex parte Murphy, 670 So.2d 51 (Ala. 1995); Ex parte McLendon, 455 So.2d 863 (Ala. 1984); D.N. v. J.H., 782 So.2d 323 (Ala.Civ.App. 2000); Scacca v. Scacca, 694 So.2d 1 (Ala.Civ.App. 1997); James v. James, 532 So.2d 1031 (Ala.Civ.App. 1988); and Dale v. Dale, 54 Ala. App. 505, 310 So.2d 225 (1975).
The appellant's motion to strike is denied.
Thompson and Pittman, JJ., concur.
Yates, P.J., and Crawley, J., dissent.
YATES, Presiding Judge, dissenting.
I dissent because the father failed to meet the burden established byLee v. Lee, 337 So.2d 372 (Ala.Civ.App. 1976), and Ex parte McLendon, 455 So.2d 863 (Ala. 1984); he presented no evidence indicating that the positive good brought about by the modification would more than offset the inherently disruptive effect caused by uprooting the children. The father testified that he was aware that the mother had remarried; he presented no evidence that would indicate a problem with the mother's new husband. He further stated that he had no concerns regarding the morals of the mother. He acknowledged that the children had made friends in Tennessee, and that in Tennessee they were involved in the same type of extracurricular activities as they had been involved in in Dothan. The father, who held the evidentiary burden, testified:
"I would love to have my children, but I want them to be happy. I mean, I want whatever they want . . . [i]f . . . [the children] want to live with [the mother], they can go now. I have no problem with that, none."
The only issue the father effectively raised was that the mother's out-of-state move had altered his visitation schedule with the children from 12 days per month to every other weekend. He further testified that the mother had agreed to meet him in Birmingham to cut his travel time in half for his weekend visitations. The record indicated that the mother encouraged and allowed the father frequent telephone contact with the children.
At the close of the father's case at trial, the mother moved to dismiss the father's petition based on the fact that the evidence did not warrant a change of custody. The court responded as follows:
"THE COURT: I understand, except for one little fact . . . that she was living with somebody as the kids said. Apparently, she keeps repeating her pattern of conduct, even after the Court instructed her last time . . . she's going to have to get up here and explain to me some things. Apparently, she has not learned her lesson. I don't understand why we had a hearing before, and she was warned and told, and she still engages in that conduct. I'm not going to have it around the kids that age. And I don't understand, ma'am, what you were thinking at the time. Do you think you can keep on and keep on?
"THE MOTHER: Your Honor, he has his own house. He has two houses.
"THE COURT: That is not the problem, ma'am. The problem is that you lived with a man you were not married to in front of a kid that is 8 and 10 years old after you had come to . . . this very court. And because of that fact, before you almost lost the kids, and then you just keep doing it. I don't understand . . . maybe I'm thick-headed or something . . . I don't understand. Go ahead. You know . . . I'm just not going to have it. And you knew it too, ma'am. You knew what the consequences were, because I told you —
"THE MOTHER: Your Honor, we were not living together.
"THE COURT: Oh, well, that is not what your kids said.
"THE MOTHER: I'm not saying that he was not there . . . he has a house a mile and a half from me."
The mother testified that she met her new husband in June 2000. She testified that they began dating and that occasionally he would spend the weekend at her home while the children were present. She further testified that after she and the children moved to Tennessee, she and her then-fiancé maintained separate residences, although he would occasionally spend the night with them on the weekends. There was no evidence indicating that his presence negatively affected the children. In fact, the mother testified that the children got along "great" with her new husband, and that he treats them "very well." Further, even the trial judge indicated that the children had no problem when their mother's fiancé used to spend the night at their home. The mother adamantly denied that the children witnessed any sexual contact between her and her new husband while they were dating or after they were married. After the mother testified, the court questioned the mother:
"THE COURT: . . . Ma'am, let me ask you this, you stated that you didn't live with him, except on . . . a couple of weekends . . . Did he sleep there overnight?
"THE MOTHER: Yes, sometimes he did.
"THE COURT: Okay. And where would he stay when he slept overnight?
"THE MOTHER: Where would he sleep?
"THE COURT: Yes, ma'am.
"THE MOTHER: With me.
"THE COURT: Okay . . . [t]hat is all I need to hear . . . .
". . . .
"THE COURT: You know, it's no doubt that she is a pretty good mom and all that, but I just can't tolerate this kind of stuff, especially when the Court has instructed her not to do this . . . . That shows to me just a total disregard of wanting those kids, because she knew how I felt about it. Didn't you ma'am? Did you not know how I felt about that type of thing?
"THE MOTHER: Yes, sir.
"THE COURT: . . . You know, other than that, I haven't got any problem with you. But I just can't let that go on."
The record does not contain sufficient evidence indicating that the trial court considered in awarding custody of the children to the father other factors besides the mother's allowing her fiancé to occasionally spend the night with her before their marriage. "The question is not the presence or absence of sexual activity in [the mother's] social life; rather, the trial court must determine whether the emphasis on social life, promiscuous or chaste, detracts from a stable, worthwhile home environment for the child." Junkin v. Junkin, 332 So.2d 392, 395 (Ala.Civ.App. 1976). The fact that the trial court failed to set out its reasoning in its order for changing custody, and the fact that the record is void of any evidence that would support a change in custody, lends itself to the conclusion that the trial court did not base its judgment on law or the evidence, but rather on personal bias. Although I note that the mother's out-of-state move will result in a change in the father's visitation schedule, the change does not meet the stringent burden imposed by Ex parte McLendon.
Crawley, J., concurs.