Atkinson v. Atkinson, 6 Div. 38
| Decision Date | 11 February 1970 |
| Docket Number | 6 Div. 38 |
| Citation | 45 Ala.App. 428,231 So.2d 753 |
| Parties | James Robert ATKINSON v. Kate Andrews ATKINSON. |
| Court | Alabama Court of Civil Appeals |
deGraffenried, deGraffenried & deGraffenried, Tuscaloosa, for appellant.
Phelps & Owens, Tuscaloosa, for appellee.
The appeal of the matter now before this court came about as a result of the granting of a request for modification of a divorce decree.
The appellee here obtained a decree of divorce from the appellant in the Superior Court of Georgia, Atlanta Circuit, in 1966, with custody of the only child of that marriage being given to the appellee. The decree also prescribed the visitation rules to be observed by the appellant.
The Superior Court had authorized the father to visit the child every Saturday or Sunday for four hours with at least 24 hours' notice of the day and time.
After the complaint seeking modification of the decree of divorce was filed in the Tuscaloosa Circuit Court, there was an ex parte request for a cessation of visitation privileges pending a hearing on the request for modification. This was granted.
The appellant then filed a motion to dismiss the complaint, which was denied. He thereupon filed an answer to the complaint.
A hearing was held before the court sitting without a jury, at which evidence ore tenus was taken, and, at the conclusion thereof, a decree was rendered modifying the divorce decree to the extent of providing different visitation privileges, i.e., authorizing the father to visit his daughter every other Saturday from 9:30 a.m. to 2:00 p.m. It was also directed that should the father be unable to visit his daughter at the appointed time, he would notify the mother by telegram.
A rehearing was requested of the court from this ruling, but it was denied.
Notice of appeal to the Supreme Court from the modification decree was then filed with the trial court.
There were five assignments of error alleged to have been made in the proceedings below. However, nowhere in appellant's brief does he argue any of the assignments of error; furthermore, there was no effort made by appellant in brief to present 'a condensed recital of the evidence given by each witness in narrative form bearing on the points in issue so as to fully present the substance of the testimony of the witness clearly and concisely.' Rule 9, Rules of the Supreme Court.
These omissions in the appellant's brief, by themselves, would authorize the affirmance of this appeal. Trawick v. Pargo, Inc., 277 Ala. 254, 169 So.2d 19. However, this court wishes to decide appeals on their merits whenever possible. Hence, we will exercise our discretion and determine if the trial court erred in its judgment.
Appellant's brief appears to raise two main issues--one, that the Tuscaloosa County Circuit Court, sitting in Equity, had no authority to modify a divorce decree rendered by the Superior Court of Georgia, Atlanta Circuit; and, two, that there was insufficient evidence presented to the Alabama Circuit Court to authorize it to modify the original divorce decree so as to prescribe different visitation periods for the father to visit his young daughter.
In considering the first issue raised in appellant's brief, it is well to consider what the Supreme Court of the United States had to say in People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133, on a situation similar to the one at bar:
'The custody decree was not irrevocable and unchangeable; the Florida court had the power to modify it at all times. Under Florida law the 'welfare of the child' is the 'chief consideration' in shaping the custody decree or in subsequently modifying or changing it. * * * '* * * The result is that custody decrees of Florida courts are ordinarily not res judicata either in Florida or elsewhere, except as to the facts before the court at the time of judgment. * * *'
Alabama adheres to the above rule. In Calkins v. Calkins, 217 Ala. 378, 115 So. 866, the Supreme Court said:
* * *'
Also in Dodd v. Lovett, 282 Ala. 383, 211 So.2d 799, the Supreme Court said:
'* * * No greater effect need be given a decree of a sister state...
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H.H.J. v. K.T.J.
...v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980); Phillips v. Phillips, 53 Ala.App. 191, 298 So.2d 613 (1974); and Atkinson v. Atkinson, 45 Ala.App. 428, 231 So.2d 753 (1970)). The father concedes that, in exceptional cases, it might not be in the best interests of a child to visit a parent. See......
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Holsombeck v. Pate
...decree it may not be disturbed, even though we might not have reached the same decision had we been the trier of fact. Atkinson v. Atkinson, 45 Ala.App. 428, 231 So.2d 753; Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797. Second, the decree is accompanied on review by a presumption of corre......
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Ashwood v. Ashwood
...becomes res judicata. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947); and Atkinson v. Atkinson, 45 Ala.App. 428, 231 So.2d 753 (1970). Courts of equity are always open for the protection of minors. Watkins v. Brannon, 54 Ala.App. 424, 309 So.2d 464, ......
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E.F.B. v. L.S.T.
...has res judicata effect as to the facts that were before the court at the time of the entry of that judgment. Atkinson v. Atkinson, 45 Ala.App. 428, 430, 231 So.2d 753, 755 (1970). Once a court has adjudicated the custody of a child, that judgment is final and conclusive on the parties and ......