Fillingim v. Fillingim
| Decision Date | 24 September 1980 |
| Citation | 388 So.2d 1010 |
| Parties | Dianne B. FILLINGIM v. Lenard B. FILLINGIM. Civ. 2253. |
| Court | Alabama Court of Civil Appeals |
James A. Ward, III, Abbeville, for appellant.
Charles W. Woodham of Halstead, Whiddon & Woodham, Abbeville, for appellee.
This case involves modification of child visitation privileges.
On April 6, 1979, the parties were divorced and the defendant father was given certain visitation privileges with his son, Jimmy. In early July, 1979, the plaintiff and the boy moved from southeast Alabama to Bessemer. In August the defendant filed a petition for a rule nisi and for modification of his rights to have the boy visit with him.
After an ore tenus hearing, the circuit court enlarged the father's rights of visitation with the 51/2 year old boy and required the mother to place the son on a weight reduction program and to submit to the court a monthly statement of the child's weight. The mother was adjudged to be in contempt of court for refusing to permit the boy to visit with his father in accordance with the divorce judgment. The ex-wife appeals and contends in both of her briefs that the trial court erred in two respects: (1) the court allowed the minor child to visit liberally in the home of the defendant father without orders to protect the boy from a serious health threat and (2) the court abused its discretion, acted erroneously, or exceeded its authority when it ordered the plaintiff to place the child on a weight reduction program and to report his weight monthly to the court. No case, statute, or authority is cited by the appellant in either of her briefs as to any alleged error; however, the facts are extensively argued.
Upon this appeal, no question was raised about the contempt adjudication. This is properly so because the review of an order made in contempt of court proceedings is by way of an appropriate extraordinary writ and not by appeal. 4A Alabama Digest Contempt Key 66(1).
Jimmy has a medical history of suffering infrequent, but severe, motor seizures, at which time he is potentially in much physical danger. His pediatrician testified by deposition that it would depend entirely upon Jimmy's father, whom the doctor did not know, as to whether it would be detrimental for the boy to visit him. The other specialist deposed that visitation privileges of a parent not having custody should be entirely eliminated because "the moving of children back and forth between families for visitation rights is, in general, a very detrimental psychological impact on any child ...." That physician advised the plaintiff to have access to a medical facility.
The boy has had no seizures since November 14, 1978, when he was placed upon a new medication. He daily attends kindergarten.
Admittedly, the plaintiff is very protective of her son. She objects to him leaving Bessemer for paternal visits. It is her belief that her son should be nearer to Children's Hospital now than when he regularly suffered from seizures. She testified, without objection, that Jimmy would like to visit with his father, but that he does not desire to move back there.
The father, who has remarried, presently resides in Banks in Pike County, which is approximately twenty-five miles from Troy. He knows in detail the procedures to be followed if Jimmy suffers a seizure.
When the evidence was concluded, the judge stated that he saw nothing in the evidence to indicate that overnight visitation should not occur. He accordingly granted extensive visitation rights to the father.
We think the change in the father's residence is a sufficient change in conditions to justify the modification of the original decree, if, of course, such change is in the best interest of the children. As to this, we note that both the original and the modification proceedings were heard by the same trial judge. In view of the favorable presumption attending his findings from the evidence taken ore tenus, we are not prepared to say that he erred to a reversal in decreeing the change in the father's visitation rights. In other words, we cannot say that his decision is palpably wrong...."
Snellings v. Snellings, 272 Ala. 254, 256, 257, 130 So.2d 363, 365 (1961).
The trial court has much discretion in ascertaining visitation rights, and each case must stand upon its own peculiar facts and the personalities involved. Allen v. Allen, Ala.Civ.App., 385...
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Pratt v. Pratt
...parent should not be allowed to unilaterally limit or restrict the noncustodial parent's visitation, see Fillingim v. Fillingim, 388 So.2d 1010, 1012 (Ala.Civ.App.1980). This court eventually held that a visitation order awarding “ ‘reasonable visitation with the minor children at the discr......
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Thomas v. Thomas
...in contempt. Although the appropriate method of review of a contempt order is by way of an extraordinary writ, Fillingim v. Fillingim, 388 So.2d 1010 (Ala.Civ.App.1980), this court will treat the husband's appeal as a petition for certiorari and consider his arguments accordingly. Wilson v.......
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H.H.J. v. K.T.J.
...visitation rights, and each case must stand upon its own peculiar facts and the personalities involved.” Fillingim v. Fillingim, 388 So.2d 1010, 1011 (Ala.Civ.App.1980) (citing Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980); Phillips v. Phillips, 53 Ala.App. 191, 298 So.2d 613 (1974); an......
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Hall v. Hall
...method for review of a contempt order is by way of an extraordinary writ, either habeas corpus or certiorari. Fillingim v. Fillingim, 388 So.2d 1010 (Ala.Civ.App.1980). As he is not in jail, we will treat the husband's appeal as a petition for writ of certiorari and consider his argument ac......