Braswell v. Braswell

• Decision Date: 21 November 1984
• Citation: 460 So.2d 1339
• Parties: Emily Calisse BRASWELL v. Bobby Gene BRASWELL. Civ. 4124.
• Court: Alabama Court of Civil Appeals

Page 1339

460 So.2d 1339

Emily Calisse BRASWELL v. Bobby Gene BRASWELL.

Civ. 4124.

Court of Civil Appeals of Alabama.

Nov. 21, 1984.

John T. Alley, Jr. of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellant.

Don P. Bennett of Herring & Bennett, Dothan, for appellee.

WRIGHT, Presiding Judge.

This is an appeal by appellant-mother from a judgment of the Circuit Court of Houston County modifying an earlier judgment and awarding custody of the parties' minor child to the appellee-father.

The parties hereto were divorced, after trial, on December 10, 1982, on the grounds of incompatibility. The mother was awarded custody of the minor child, Brandi, age two, with the father given visitation rights for the months of January, May and September until the child reaches school age, then the months of June and July. Father was to pay $50 per week as child support and $20 per week when he has visitation privileges.

On September 23, 1983, the father filed a motion to modify the judgment and award him custody of Brandi, alleging that she was subjected to an immoral and improper environment in that the mother was cohabiting with a man to whom she was not married. A temporary ex parte order granting custody to the father was entered on September 29, 1983. The mother was served by registered mail, at her home in Houston, Texas, on September 30, 1983. A hearing on the merits of the case was held on October 13, 1983, and on October 20, 1983, a judgment modifying the original judgment and awarding custody of Brandi to the father was entered. The mother appeals.

The mother has listed six issues on appeal. The first three issues presented all relate to pre-judgment actions of the trial court. In view of our subsequent ruling, we discern no purpose in discussing those three issues. However, we will state that their dependence upon the Uniform Child Custody Jurisdiction Act (UCCJA) and the case of Wyatt v. Falhsing, 396 So.2d 1069 (Ala.Civ.App.1981), is misplaced. This case is not related in any way to the provisions of the UCCJA. This is merely a petition for modification of a prior divorce case in a court with continuing jurisdiction over the parties and the child.

We additionally comment that the mother clearly submitted herself to the jurisdiction of the court and participated in the proceedings without objection. Thus, without conceding any error therein, we find she cannot now complain of lack of a fair trial.

The only issue presented that is legally sufficient for reversal is that the evidence fails to show a change of circumstances necessary to modify a decree of custody entered some nine months previously. It is evident that the only basis for the petition presented is the allegation that the mother had been living with a man to whom she was not married, while the child was in her custody. The father showed that on one occasion, when he returned the child to the home of the mother, he was told there was a man asleep there. On other occasions he called the home during the daytime, and a man often answered the phone. The man indicated is now the husband of the mother. Any other information concerning the acts of the mother came to the father as hearsay from the three-year-old child. The evidence is undisputed that the child has been well cared for by the mother and has been healthy and happy while in her custody. The only legal evidence presented as to alleged immoral acts was the admission of the mother that she began living with her future husband at a time when the child was in...