30 So.2d 444 (Ala. 1947), 6 Div. 560, Greene v. Greene

Docket Nº:6 Div. 560.
Citation:30 So.2d 444, 249 Ala. 155
Opinion Judge:GARDNER, Chief Justice.
Party Name:GREENE v. GREENE.
Attorney:Appeal from Circuit Court, Jefferson County; Geo. Lewis Bailes, Judge., Jackson, Rives & Pettus, of Birmingham, for appellant., Parsons, Wheeler & Rose, of Birmingham, for appellee.
Case Date:May 08, 1947
Court:Supreme Court of Alabama
 
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Page 444

30 So.2d 444 (Ala. 1947)

249 Ala. 155

GREENE

v.

GREENE.

6 Div. 560.

Supreme Court of Alabama

May 8, 1947

         Jackson, Rives & Pettus, of Birmingham, for appellant.

         Parsons, Wheeler & Rose, of Birmingham, for appellee.

         GARDNER, Chief Justice.

         The appeal is from a final decree granting the petition for modification of an original divorce decree entered on April 6, 1946, wherein the custody of the minor child was awarded to the father, William Westley Greene, Jr., appellant here.

         In the divorce decree the husband, William Westley Greene, Jr., was divorced from Barbara Greene, and the decree contained the following provision: 'Pursuant to the agreement of the parties filed in this cause, it is further ordered, adjudged and decreed as follows: A. That the care, custody and control of the minor child of the marriage, namely, William Westley Greene III is awarded to the Complainant, the Father, with the right to Respondent, the Mother, to see and be with the child at such reasonable times as will not interfere with its proper care, custody, control and education.'

         Some nine months thereafter, on January 22, 1947, the mother filed her petition for modification of this decree seeking the custody and control of her minor child. The cause was heard on oral proof before a circuit judge of the Tenth Judicial Circuit other than the judge who delivered the original decree, with the result that the petition for modification was granted and the child taken from the father and given to the mother.

         Fully conscious of a deep sense of responsibility in case of this delicate nature, the evidence has been read and studied with painstaking care. No detailed discussion will here be undertaken as it would serve no useful purpose. We will merely state in general outline the reasons which compel us to a conclusion contrary to that of the learned trial judge.

Page 445

         The father is a young man twenty-two years of age, living with his father, mother and sister in the city of Birmingham; his parents owning their home, and it is quite evident they are good substantial people. The father is now attending school under the GI Bill of Rights, having served in the Navy overseas. While he was thus overseas the mother, then his wife, on February 24, 1946, wrote him a letter requesting that he consent to a divorce. She stated that she understood his mother wanted the baby and that it was all right with her. She let him know that she didn't love him, and that she wanted his mother to have the baby and 'that is the way it will be in the divorce.' This father was evidently much surprised to learn of his wife's desire for a divorce, and it is evident he had given no occasion for such a change of attitude. Upon his return in April, 1946, she consulted with an attorney, and it appears that in course of time both of them talked over the divorce matter with the attorney. This attorney testifies in the case. His testimony shows clearly that it was the wife who was in fact seeking the divorce, and he was somewhat surprised at her willingness as a young mother to so readily give...

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