Easterling v. Caton, 5 Div. 543

• Decision Date: 25 March 1954
• Docket Number: 5 Div. 543
• Citation: 260 Ala. 543,71 So.2d 835
• Parties: EASTERLING v. CATON.
• Court: Alabama Supreme Court

Page 835

71 So.2d 835

260 Ala. 543

EASTERLING v. CATON.

5 Div. 543.

Supreme Court of Alabama.

March 25, 1954.

A. B. Foshee, Clanton, for appellant.

Jos. J. Mullins, Clanton, for appellee.

GOODWYN, Justice.

On January 9, 1945, appellant was granted a divorce from appellee on the ground of adultery. The decree also provided that appellant should have custody of the parties' daughter, then two years of age, 'until the further orders of the court', with the right of the mother to 'visit and see said child at reasonable times and have said child visit her for at least two Sundays in each month'. On January 18, 1947, that decree was amended and modified to the extent that the father, appellant here, was 'to have the sole custody, control and possession of said child' and the mother, appellee here, was 'denied the right to have said child see and visit with her, or to see and visit this said child until the further orders of this court'. From the record before us, it appears that the amendatory decree was rendered pursuant to a petition by appellant in which it was alleged that appellee was 'not a fit and suitable person to have the custody, control and possession of said child for any period of time'. The record does not show when the petition was filed, although it was sworn to on December 14, 1946. Nor does the record show whether appellee was given notice of said petition, nor whether testimony was taken in support thereof. Although said petition and amendatory decree are shown in the record, it is not clear how they became a part of the record in the instant proceedings.

The petition now before us appears to have been filed by appellee on March 6, 1951. The record does not show the date of filing although appellant's demurrer to the petition refers to it as having been filed on that date. The prayer of the petition is that appellee be given 'the custody, control and possession of said child * * *' and that she 'be given the right to rear, train, educate and control said child and to have the custody, control and possession of said child without let or hindrance on the part of said Isaac Preston Easterling, with the right in said Isaac Preston Easterling, to see and visit said child or have said child see and visit him on such occasions and at such times as will appear meet and proper' to the court and as appears to the court 'may be best for said child'.

The petition refers only to the decree of January 9, 1945, a copy of which is attached thereto and made a part thereof. No reference is made to the amendatory decree of January 18, 1947. It is averred in the petition that appellant complied with the decree of January 9, 1945, 'for about six months after same was rendered but since said time [he] has refused to comply with said decree and refused the petitioner the custody of said child for any length of time and has consistently refused to let your petitioner see the child'. The petition also contains the following averments:

'4. Your petitioner further avers that she has re-married since the rendition of said decree and that she is now Ethel Mae Caton and resides with her husband on Route No. 5, Clanton, Chilton County, Alabama, and the only members of her household are your petitioner and her husband, Bluford C. Caton, and your petitioner avers that she is 26 years of age and her husband is 31 years of age and no children have been born to their marriage and your petitioner and husband reside upon their own farm and dwelling house and are now engaged in farming and their house is modern, well equipped and well provided for the comfort, suitability, rearing and training of said child and your petitioner resides in a good community and resides within 2 miles of good churches and good schools; petitioner further avers that said community is a suitable place for the secular and spiritual education, rearing and training of said child, and that school bus facilities are available for said child at said place; petitioner further avers that she and her husband are fit and suitable and the community is fit and suitable place for the rearing, training and education of said child.

'5. Petitioner further avers that the said respondent, Isaac Preston Easterling has never re-married and now resides with his sister Gertie Mae Durbin, at the above address given. Your petitioner further avers that the respondent, Isaac Preston Easterling is not fit and suitable for the rearing, training and education of said child; and that said child at her present age and for the next several years will especially need and require the attention of a mother and the respondent cannot give to said child the care and attention that is necessary and proper to be given to said child.'

Appellant demurred to the petition. This appeal is from the decree overruling said demurrer. The question presented is whether the petition is sufficient to invoke an inquiry in equity with respect to a change in custody of the minor child.

We see no need to deal at length with the objection that the petition now before us makes no reference to the purported amendatory decree of January 18, 1947. Assuming the validity of that decree, strict pleading would require appropriate reference to it in the petition, since the petition is not an independent suit for custody but one to modify the decree of January 9, 1945, which has been modified by the decree of January 18, 1947. However, in proceedings of this nature we have been reluctant to apply strict rules of pleading and procedure. Hardy v. Hardy, 250 Ala. 297, 299, 34 So.2d 212; Scott v. Scott, 247 Ala. 598, 599, 25 So.2d 673; Brown v. Jenks, 247 Ala. 596, 597, 598, 25 So.2d 439. As stated in the Hardy case, supra [250 Ala. 297, 34 So.2d 213]:

'It is of course well settled in this jurisdiction that when a divorce decree embraces the subject of infants' maintenance or custody, the chancery court, without reservation of power, may on change of circumstances at any time thereafter modify its decree to meet changed conditions. Bridges v. Bridges, 227 Ala. 144, 148 So. 816. It was also held in the Bridges case tha...