Couey v. Couey
| Decision Date | 09 April 1975 |
| Citation | 54 Ala.App. 602,311 So.2d 322 |
| Parties | Patricia Ann COUEY v. Joe Dwain COUEY. Civ. 441. |
| Court | Alabama Court of Civil Appeals |
James C. Francis, Decatur, for appellant.
Dan F. Nelson, Decatur, for appellee.
This is a divorce case. The mother appeals from that portion of the decree awarding custody of the parties' four year old daughter to the father.
Pertinent tendencies of the evidence reveal the following:
The parties were married June 20, 1969. Appellant-mother filed a petition for divorce on January 10, 1974, in which she alleged incompatibility and sought custody of the child. Appellee-father filed a cross-complaint in May 10, 1974, in which he alleged adultery on the part of appellant and also sought custody.
Many witnesses testified at the hearing, held Ore tenus, producing much contradictory evidence.
The evidence indicates that appellee has been employed for over two years by the Electric Department of the City of Decatur at a salary of $664 a month. Following the award of custody of the child, appellee testified he would move into a home occupied by his parents. Additional rooms were to be added to the house to provide the child with her own bedroom. Additionally, appellee's mother testified she would quit her job in order to stay with the child full time while the father is at work.
As further indicated by the evidence, appellant works at several jobs. She works part time--approximately six hours a week--for a locksmith and also works a night shift at McDonald's. Additionally, she keeps and tends the children and cleans the home of her alleged paramour who is also her boss at both of her jobs.
The evidence shows that appellant works until after 11:00 P.M., on week nights and until after 1:00 on Friday night and until after 12:00 midnight on Saturday night. While appellant is at work her sister, who is in the process of obtaining a divorce, keeps the parties' child and also the children of appellant's boss. After work, appellant retrieves the children from her sister's, transports them to her boss's home, tucks his children in and apparently remains with them until he returns home, and then takes her own child home. Thus, the nightly process involves several late night movements on the part of the child.
The appellant and her child occupy the same bed in an apartment appellant rents with another single girl. Until shortly before the trial, the address of this apartment was kept secret from all others by appellant.
While introducing no direct proof of adultery, appellee and a cohort testified that they followed appellant to the home of her alleged paramour and that appellant and the man spent the night there together.
This was denied by appellant and the other party.
After the hearing, the learned trial judge entered a decree in which the divorce was granted on grounds of incompatibility of temperament. He also awarded custody of the child to the appellee-father with liberal visitation rights to the appellant-mother.
The basis of appellant's appeal, and the only issue raised, is that the trial judge erred in not awarding the custody of the infant daughter to her mother, appellant.
In a similar case, Linderman v. Linderman, 49 Ala.App. 662, 664, 665, 275 So.2d 342, 344, this court made the following observations which we deem apropos here:
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Warnick v. Couey
...For a better understanding of the prior facts and our decision in the instant appeal, reference should be had to Couey v. Couey, 54 Ala.App. 602, 311 So.2d 322 (1975). In 1976, the wife petitioned the Circuit Court of Morgan County to award the wife custody of the child. This petition alleg......