Dale v. Dale
| Decision Date | 12 February 1975 |
| Citation | 54 Ala.App. 505,310 So.2d 225 |
| Parties | Darlys K. DALE v. Donald W. DALE. Civ. 379. |
| Court | Alabama Court of Civil Appeals |
James M. Dyer, Huntsville, for appellant.
Culver & Miller, Huntsville, for appellee.
This appeal is from a decree of divorce.
The appellant-wife filed her bill of complaint in the Circuit Court of Madison County on December 31, 1970 seeking a divorce from appellee-husband on the ground of cruelty. She subsequently amended her complaint to add the grounds of adultery and incompatibility. The trial court issued an order in response to a request for a pendente lite hearing awarding temporary custody of the children to appellant pending a determination of the cause. On July 24, 1972 appellee filed his answer and a cross-bill. The cross-bill originally averred adultery, but was later amended to include incompatibility.
After trial a decree was rendered divorcing the parties on account of the adultery of the appellant-wife. The court awarded custody of two young boys to the father and gave reasonable visitation rights to the mother, including two weeks each year during the children's summer vacation. During this two week period appellee is required to pay $50 to appellant for the support of the children.
From this decree appellant has appealed to this court and assigned ten grounds of error. However, she argued only four of them in brief, and those assignments not argued are deemed waived. Rule 9, Supreme Court Rules.
By assignment of error three appellant contends that the trial court erred in decreeing that she was an unfit mother and that the best interests of the children would be served best by awarding their custody to the appellee-father.
The paramount interest and concern of courts, be they trial or appellate courts, in child custody cases is always what is best for the child or children. Hagler v. Hagler, 50 Ala.App. 266, 278 So.2d 715; Ellison v. Ellison, 48 Ala.App. 80, 261 So.2d 911. And, each case involving child custody must be decided on its own peculiar facts and circumstances. Kewish v. Brothers, 279 Ala. 86, 181 So.2d 900.
In deciding what is the best interests of the child, the courts can consider facts relating to the present and future welfare of the child. Pruitt v. Key, 281 Ala. 433, 203 So.2d 450, 30 A.L.R.3d 284. It is also relevant for the court to consider ties of affection resulting from years of association between the child and its custodian. Kewish v. Brothers, Supra. Another pertinent inquiry is which party was at fault in terminating the marriage relationship. Calhoun v. Calhoun, 278 Ala. 610, 179 So.2d 737. However, the adjudication of adultery on the part of the wife does not, in and of itself, bar her from having custody of the children, but it is a matter for consideration by the court along with all the other facts presented in the case. Mason v. Mason, 276 Ala. 265, 160 So.2d 881.
The evidence in the present case shows that the parties to this proceeding were separated in November 1970. By an interlocutory order the appellant was given temporary custody of their two young sons.
The appellee agreed to pay $50 every week for the support of the children. The record reflects that he paid to appellant about $3,900 as child support from the time of separation up until just before the trial of the cause in the first part of 1973.
The appellant worked for a time as a waitress in a cocktail lounge in Huntsville, Alabama, but for the most of the period that she was in Huntsville after the separation, she was unemployed. She said that she was a licensed cosmetologist in the State of Nebraska but was not so licensed in Alabama.
She and the children lived in small apartments that they shared at various times with other women in order to reduce expenses. They also lived for about six weeks in a motel room in Huntsville. During the sojourn in the motel the children did not attend school. Appellant stated that this was because she was sick part of the time and was unable to afford to send them.
There was conflicting testimony as to the care and feeding of the children during the short period of time they stayed in the motel room. However, appellant stated that she was working and trying to do the best she could on practically no money.
There was evidence that during the period of separation while appellant remained in Huntsville that she was guilty of adultery. She admitted as much from the witness chair. After appellant moved back to Nebraska in April 1972, the evidence reflects only one instance of infidelity.
Shortly after arriving at her mother's home in Wymore, Nebraska, the children were placed in school. And, even though they had gotten behind in their school work, their teachers in Nebraska stated that they had adjusted well to their new surroundings and were making very good progress in their school work. The teachers said that the youngsters had acquired new friends and had been readily accepted into the school community by their peers. The teachers further observed that it would be harmful to these children's welfare to place them in a foreign environment at this stage of their lives. They said that the children were always neat and clean, and appeared to be healthy. The teachers further stated that the appellant would periodically call them to inquire about the children's standing in school and what she should do to help them solve any school problems they might have encountered.
The appellant, who had been living at her mother's for some time, testified that she was moving to Lincoln, Nebraska where she would be employed as a cosmetologist. The city of Lincoln is about fifty miles from her mother's home, and, while working in Lincoln, she and the children would be living with a sister. The sister is married to a practicing attorney in Lincoln and they have no children. The sister said that she was looking forward to the children being in her home, and would do all she could for their well-being.
The appellee prior to the separation had been a traveling salesman and had been at home with appellant and the children only on the weekends. And, according to appellant, the father did not spend much time with the children when he was at home.
Since the separation the father has seen the children only once, and then for two or three weeks. He testified that he sent the children Christmas gifts but did not believe that they had been received by them.
Appellee stated that he had committed acts of adultery since the separation and prior to the divorce. Shortly after the separation, appellee moved to Richmond, Virginia where he is still residing. About the middle of 1971 appellee started sharing an apartment with a woman to whom he was not married. This woman's two young boys live with them in this two bedroom apartment.
The father and his children have been effectively separated for about five years with little contact with each other during this period of time. The children have been with their mother all of this time and they have been living in Nebraska for about two and a half years. The appellee's parents reside in Beatrice, Nebraska where the children have visited and can visit easily in the future.
Ordinarily a trial court's decree in custody matters will not be disturbed unless there has been plain error committed or manifest injustice resulting therefrom. McGee v. McGee, 284 Ala. 320, 224 So.2d 672. Neither will the trial court's decree be reversed in a custody case unless it be decided that the trial court misapplied the law to the facts. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145.
In the instant case the only real or sufficient evidence relating to appellant's fitness to have custody is that relating to her morals. She was shown to have committed adultery during the period of separation but prior to the divorce, and she admitted such. But by the same token, the evidence clearly shows that appellee admitted living openly with a woman who was not his wife.
To take these children out of one immoral situation and place them in another immoral situation does not serve the best interests of the children....
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Ex Parte G.C.
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