Gould v. Gould

• Decision Date: 30 April 1975
• Citation: 55 Ala.App. 379,316 So.2d 210
• Parties: Linda GOULD v. Arthur GOULD. Civ. 462.
• Court: Alabama Court of Civil Appeals

Page 210

316 So.2d 210

55 Ala.App. 379

Linda GOULD v. Arthur GOULD.

Civ. 462.

Court of Civil Appeals of Alabama.

April 30, 1975.

Rehearing Denied May 28, 1975.

A. K. Callahan and George W. Nichols, Jr., Tuscaloosa, for appellant.

William C. McCain, Tuscaloosa, for appellee.

HOLMES, Judge.

This is an appeal by appellant-mother from a decree of the Circuit Court of Tuscaloosa County modifying an earlier decree and awarding custody of the parties' two minor children to the appellee-father.

While there is some slight conflict in the testimony, a close examination of the record reveals the following:

The parties were divorced on October 19, 1973, on appellant's petition alleging incompatibility of temperament. To this petition appellee filed an answer and waiver.

In parts pertinent to this appeal, the judge granted appellant's petition for divorce on the ground of incompatibility and also awarded to her the care and custody of the two minor children. Additionally, the court ordered that appellee pay $40 a month child support payments. Appellee was given certain visitation rights.

After the divorce, for a brief period of time, appellant continued to live in a trailer formerly occupied by her and appellee and the two children. She then moved into an apartment with another lady and her child.

On March 14, 1974, appellant filed a petition with the circuit court requesting that she be allowed to move the children out of the State of Alabama and into Florida. The reasons given in the petition for the request was due to economic conditions and health conditions of herself and the children. The court entered an Ex parte order on March 14, 1974, allowing her to take the children out of state.

Appellant testified that she gave both her mother and her ex-husband an address at which she could be reached. Appellee testified that he made no effort to contact the children prior to his and Mrs. Rawlins' (maternal grandmother and co-petitioner of appellee) trip down in late April or early May.

After moving to Florida, appellant and the children lived in what appears to be various locales for a short period. At some point in time, appellant met the man she later married and, apparently, shortly thereafter moved into this man's home. He testified that he then moved in with his mother.

Some time in what appears to have been early May of 1974, the appellees visited appellant and the children in Winter Garden, Florida. An argument ensued after their arrival during which appellee-father used profanity in front of not only his own children, but also those of appellant's later-to-be husband. While there, the appellees also discovered some men's garments in the bedroom and a guitar and boots in the living room. Appellee-mother-in-law testified that her daughter told her that she and the man were married. Appellant testified that she said they were going to be.

Appellant allowed the appellees to take the children to Disney World during this visit, but asked that they be returned the next day in time for church. The appellees complied with this request. On their return, the appellees encountered the husband-to-be who apparently admonished appellee-father for his profanity in front of the children. The appellees then left Florida for Alabama.

Following their return to Alabama, the appellees filed a petition for modification on May 16, 1974, alleging that appellant was 'living to provide the proper moral and 'failing to provide the proper moral home and atmosphere' and, accordingly, seeking a custody modification.

We might note at this point that, while the maternal grandmother is a co-appellee in this case, it appears from her testimony that her interest in the case is a concern for the appellant and the children being so far from home. And she gives no testimony or indication otherwise as to appellant's fitness as a mother.

The evidence further indicates that appellant and the man she is accused of living with were married on July 11, 1974, shortly before the hearing. They live in a four-bedroom house inhabitated by the appellant, her husband, her two children and his two children.

Appellee-mother-in-law, who testified she would take care of the children 'some', lives in a one-bedroom home and works in the evenings from 2 o'clock in the afternoon until 11 o'clock at night.

Appellee-father also lives in a one-bedroom dwelling. Additionally, he is behind in his child support payments. Since the weekly payments of $40 were to begin on October 22, 1973, he has made only nine payments through the courts and an additional five payments, totaling $150, directly to appellant. Appellee testified he was on strike during some of this period, although he did find work elsewhere for a period during the strike. The evidence further shows that appellee-father now makes $197.05 a week and 'draws' about $143 a week.

After hearing all the evidence Ore tenus, the trial judge held that 'the safety and emotional well-being' of the children required a change in custody from the appellant to appellee-father. Additionally, the court found the appellee-father $828.50 in arrears in child support.

Thus, the issue presented to this court is whether the trial judge erred to reversal in awarding custody of the children to the father.

At the outset, we make notice of the following time honored principles.

First, it is well established that where testimony is taken Ore tenus, the finding by the trial court has the weight of a jury verdict and such finding will not be disturbed unless plainly and palpably wrong and contrary to the great weight of the evidence. Blankenship v. Blankenship, 266 Ala. 182, 94 So.2d 743.

Second, divorce decree providing for custody of a minor child will not be modified unless changed conditions are shown which justify such modification. Snead v. Snead, 279 Ala. 344, 185 So.2d 135.

Third, in proceeding to modify a divorce decree respecting custody, each case must rest on its own facts and circumstances with the principle always in cumstances with the principle always in paramount importance. Featherston v. Featherston, 271 Ala. 238, 123 So.2d 120.

Fourth, where the children are of tender years, the mother is generally considered better fitted to exercise custody unless she is unfit for the trust. Lansdell v. Snoddy, 269 Ala. 344, 113 So.2d 151.

And, finally, it is held in this state that a party seeking modification of a child custody provision of a divorce decree must allege and show some change of conditions or other substantial reason for modification. Perez v. Hester, 272 Ala. 564, 133 So.2d 199.

Applying these well-established principles to the facts before us, we are compelled to reverse the finding of the learned trial judge for, despite the presumption of correctness attendant in his decree, we find no charged circumstances to justify a modification in this instance.

As we perceive appellee's petition for modification and arguments as set out in brief, it appears their contentions are based on two grounds.

One ground is that, in making its ruling, the trial court properly considered the adverse effects of appellant's numerous changes in residence in determining if there had been a material change of circumstances affecting the welfare and best interest of the children.

In Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144, this court held that for a change in residence to warrant a modification all of the surrounding circumstances must show an adverse effect upon the child.

There is no evidence of any...