Fridge v. Fridge
| Citation | 57 Ala.App. 729,331 So.2d 737 |
| Parties | Sally C. FRIDGE v. Charles F. FRIDGE, Jr. Civ. 491. |
| Decision Date | 28 April 1976 |
| Court | Alabama Court of Civil Appeals |
W. A. Kimbrough, Mobile, for appellant.
Caffey & Owens, Brewton, for appellee.
This is an appeal by the appellant-mother from a decree granting appellee-father's petition to modify the custody provision of a prior decree of divorce.
The parties were divorced by the Circuit Court of Escambia County in 1969. Custody of the two male minor children born of the marriage was awarded to the mother. This decree was modified in 1970 and custody of the oldest child was awarded to the father. This decree was also rendered by the Circuit Court of Escambia County. In 1971, other proceedings initiated by appellant-mother were had in the Escambia County Circuit Court.
In August of 1974, the appellee-father filed a petition in the Circuit Court of Escambia County seeking custody of the other minor child, now age 6. At the time of this proceeding the father and his family resided in Mississippi. The mother, her new husband, and the minor child resided in Georgia. After a hearing Ore tenus the trial court modified the previous decree and awarded custody to the father. The mother appeals from his order.
The issues as presented by able and distinguished counsel for appellant-mother are: (1) Did the Circuit Court of Escambia County have jurisdiction? and, (2) Was the decree modifying custody supported by the evidence? We answer both in the affirmative.
While counsel for appellant presents able and interesting argument that the trial court either does not have jurisdiction or should not entertain jurisdiction since the parties resided elsewhere than in the state of Alabama, the law is contrary.
As seen from the above, the court entered the original decree and prior to this proceeding both parties petitioned the same trial court for relief. We should further note there is no contention that both parties were not residents of the state of Alabama and Escambia County at the time of the original decree.
It is the law of this state that in cases of this nature, jurisdiction, once acquired, cannot be defeated by subsequent events, notwithstanding their character is such as would have prevented jurisdiction originally attaching. Lassiter v. Wilson, 207 Ala. 669, 93 So. 598. As our Presiding Judge Wright said in Leigh v. Aiken, 54 Ala.App. 620, 625, 311 So.2d 444, 449:
We therefore find the trial court to have had jurisdiction to modify its own prior order and, further, did not err in exercising this jurisdiction.
While counsel for appellant has favored this court with an excellant brief wherein he urges the evidence is not sufficient to support a modification of custody, we have in this instance no alternative but to affirm.
We find the following in the record:
'THE COURT:
'MR. KIMBROUGH:
'Your Honor, we do not object to it.'
Additionally, the following is found in the record:
'THE COURT:
Additionally, the trial judge referred to the in camera discussion with the child in his remarks to the parties at the close of the testimony.
As seen from the above, it is clear that the child testified in camera. It is also apparent that appellant made no objection to this procedure. In fact, he specifically stated he had no objection. It is further apparent that the child's testimony is not contained in the record.
As this court stated in Hagler v. Hagler, 50 Ala.App. 266, 269, 278 So.2d 715, 718:
Again, quoting from Hagler, supra:
'It is apparent from the above that some of the minor children testified in camera. It is further apparent that this entire testimony is not included in the record. The Supreme Court of Alabama, whose decisions we are bound to follow (see Tit. 13, § 111(1), Code of Alabama 1940), has held in Mason v Mason, 276 Ala. 265, 267, 160 So.2d 881, 882:
"It is a well-established rule that 'we cannot disturb...
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