Baker v. Baker

• Decision Date: 30 June 1982
• Citation: 418 So.2d 134
• Parties: William BAKER v. Lynda Jean BAKER. Civ. 3130.
• Court: Alabama Court of Civil Appeals

Page 134

418 So.2d 134

William BAKER v. Lynda Jean BAKER.

Civ. 3130.

Court of Civil Appeals of Alabama.

June 30, 1982.

Rehearing Denied Aug. 4, 1982.

Robert E. Gibney of Kilborn & Gibney, Mobile, for appellant.

Edward R. Tibbetts, Mobile, for appellee.

HOLMES, Judge.

This is an appeal from an order of the Circuit Court of Mobile County awarding custody of two minor children to their mother.

The parties to this action were divorced in 1979. The divorce decree awarded temporary custody of the parties' two children to the maternal grandmother. The trial court reserved until a later time any decision regarding permanent custody of the children. The father was required to pay the grandmother $225 per month as child support.

In August, 1981, both parents filed a petition for change of custody. The husband had also earlier filed a petition to modify child support payments. An ore tenus hearing on these issues was held on September 23, 1981. The trial court thereafter awarded permanent custody of the children to the mother and awarded the father reasonable visitation rights. The trial court further ordered the father to pay the $225 per month to the mother as child support. Additionally, the mother was awarded a judgment against the father in the amount of $1,242 which represents the child support arrearage.

The father appeals to this court from the foregoing order. He primarily contends that the trial court abused its discretion in awarding custody of the children to the mother. The father also contends that the trial court erred in refusing to reduce the amount of child support payments he was required to make. This court affirms.

Viewing the record with the attendant presumptions, the following is pertinently revealed: The children who are the subject to this custody action are both males who, at the time of the custody hearing were eight and four years old. Though the grandmother had temporary legal custody of the children, for the majority of the time since the divorce the children have been in the actual custody of the mother. The record further reveals that the father was aware of this de facto change in custody and that he did object to it though he took no legal action to change the situation.

Viewing the overall circumstances of the parties, both parents appear to be fit to receive custody of the children. Both the father and mother are young and in good health. Both are employed, the mother by a bank and the father by an insurance company. Though the father has been continuously employed since the divorce he has allowed an arrearage in his child support payments to develop.

Both the father and mother have remarried since the divorce. The father is presently living with his new wife and baby in a residential neighborhood. The two children have a good relationship with their father and his new family.

The mother, though married, is presently living in an apartment complex away from her new husband. Both the mother and her husband testified that this separation was due solely to some problems with the husband's daughter by a previous marriage and when these problems are resolved the mother will again reside in a home with her husband. The testimony further revealed that the children are on good terms with the mother's husband.

The children appear to have become adjusted to the circumstances in which they find themselves. The record indicates that the children get along well with each other, with their parents and grandparents, and with their step-parents. Additionally, the testimony revealed that the eldest child, who was in the second grade at the time of the hearing, was doing well in school.

It is well settled that an award of custody is a matter within the sound discretion of the trial court and the trial court's decision will not be reversed on appeal absent abuse of discretion. Smythe v. Smythe, 376 So.2d 1101 (Ala.Civ.App.1979); Dasinger v. Dasinger, 369 So.2d 813 (Ala.Civ.App.1979). In exercising its discretion the trial court must be guided by the children's best interests. Rosser v. Rosser, 355 So.2d 717 (Ala.Civ.App.1977), cert. denied, 355 So.2d 722 (Ala.1978). The Alabama Supreme Court in Ex parte Devine, 398 So.2d 686 (Ala.1981), set out some factors to be considered by the trial court in awarding custody. These factors include the sex and age of the children, the characteristics and needs of each child, the respective home environments of the parties, the characteristics of those seeking custody, the capacity and interest of each parent to provide for the varying needs of the children, the interpersonal relationship between each child and each parent, the interpersonal relationship between the children and the effect on the children of disrupting or continuing an existing custodial status. 398 So.2d at 696-97.

As stated earlier, both parents are undoubtedly fit to receive custody of the...