Jones v. Haraway

• Decision Date: 30 November 1988
• Citation: 537 So.2d 946
• Parties: Thomas George JONES v. Regina K. Jones HARAWAY. Civ. 6472.
• Court: Alabama Court of Civil Appeals

Page 946

537 So.2d 946

Thomas George JONES v. Regina K. Jones HARAWAY.

Civ. 6472.

Court of Civil Appeals of Alabama.

Nov. 30, 1988.

Jerry Lee Hicks, Huntsville, for appellant.

William K. Bell of Lammons, Bell & Sneed, Huntsville, for appellee.

PER CURIAM.

This is a child visitation case.

The parties were divorced in 1979. Custody of their daughter, Aimee Beth Jones, was granted to the mother, and visitation rights were granted to the father.

In August 1987 the mother filed a petition to modify, requesting a modification of the father's visitation rights and an attorney fee award. The mother sought specifically to restrict the child's overnight visits with the father because he was living with his girlfriend out-of-wedlock. The trial court granted the mother's petition, and the father appeals. We reverse and remand.

The dispositive issue on appeal is whether there was sufficient evidence to establish that it was in the child's "best interests" to terminate overnight visitation privileges with her father. Put another way, was there any evidence that showed that the father's living arrangement had a substantial detrimental effect on the child.

Our courts have long held that, while evidence of indiscreet behavior or conduct is a factor to consider in a custody action, custody will not be modified where the party seeking modification fails to establish a substantial detrimental effect on the welfare of the child as a result of the indiscreet conduct. Benton v. Benton, 520 So.2d 534 (Ala.Civ.App.1988); Armstrong v. Armstrong, 515 So.2d 27 (Ala.Civ.App.1987); Smith v. Smith, 464 So.2d 97 (Ala.Civ.App.1984); Roberson v. Roberson, 370 So.2d 1008 (Ala.Civ.App.1979). In cases of primary custody, indiscreet behavior, such as living with someone of the opposite sex without the benefit of marriage, is only a factor to be considered, and our case law requires that there be evidence presented showing that such misconduct is detrimental to the child. Smith, 464 So.2d 97. Such misconduct is not evidence in itself of a substantial detrimental effect on a child despite the absence of any proof of harm to the child.

While this court is aware that the cases cited above concern primary custody situations and not visitation privileges, we know of no reason why the same standard should not equally apply to custody cases dealing with visitation rights.

Clearly, if such indiscreet behavior is only to be considered a factor in primary custody cases, surely it should not be considered anything more in a visitation rights case. Furthermore, in visitation cases there should still be evidence presented to show that the misconduct complained of is detrimental to the child.

This conclusion is further supported by the fact that the majority of appellate courts in this country require a showing that a parent's indiscreet conduct, i.e., "cohabitation," has adversely affected the child in primary custody changes as well as in visitation situations. Gallo v. Gallo, 184 Conn. 36, 440 A.2d 782 (1981); Chenevert v. Chenevert, 497 So.2d 47 (La.Ct.App.1986); J.L.P. (H) v. D.J.P., 643 S.W.2d 865 (Mo.Ct.App.1982); Kelly v. Kelly, 217 N.J.Super. 147, 524 A.2d 1330 (Ch.Div.1986); Venable v. Venable, 2 Va.App. 178, 342 S.E.2d 646 (1986); Brinkley v. Brinkley, 1 Va.App. 222, 336 S.E.2d 901 (1985).

Here, we have carefully reviewed the record and find that there is no evidence whatsoever that it would be in the best interests of the child to terminate the overnight visits with her father. In other words, there is simply no evidence that the child has suffered any substantial detrimental effect due to the father's living arrangements. The only evidence presented by the mother was that the father did live with his girlfriend and that the child involved was nine years old. This alone does not appear to constitute a substantial detrimental effect. Stated differently, there is no evidence of a detrimental effect although such evidence might be shown to exist on remand.

The father also contends that the trial court erred in the attorney fee award to the mother. We disagree.

It is well settled that the award of attorney fees in divorce or modification cases is within the sound discretion of the trial court and such awards will not be reversed absent an abuse of discretion. Cole v. Cole, 507 So.2d 1333 (Ala.Civ.App.1987). After a review of the record, we find no such abuse in the award of attorney fees to the mother.

In light of this opinion, the mother's request for attorney fees on appeal is denied at this time.

In view of the above, we affirm that part of the trial court's order concerning the award of attorney fees to the mother and reverse that part of the order concerning visitation and remand for proceedings not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BRADLEY, P.J., and HOLMES, J., concur.

INGRAM, J., concurs in part and dissents in part.

INGRAM, Judge (dissenting in part):

I respectfully dissent from the majority holding in this case regarding restrictions imposed by the trial court on the father's visitation rights.

The instant case presents to this court a question of first impression on the issue of whether the visitation privileges of a parent who is cohabiting with a member of the opposite sex without benefit of marriage may be restricted to exclude the child's overnight visits in that parent's home.

Although no Alabama appellate court has addressed the precise issue now before us, other states have done so. I have reviewed many of those decisions as an aid to resolving the issue presented here. Cases with factual scenarios that differ from the one now before this court are included in an effort to assess the approaches of other jurisdictions relative to the extent of a child's contact with a parent who is engaged in an illicit affair with a live-in companion. To broaden my discussion, I will mention cases that involve custody as well as visitation disputes and homosexual as well as heterosexual parents. I must emphasize, however, that the issue in this case is visitation and that the relationship involved is clearly between members of the opposite sex.

The number of unmarried adults in our country who are living with companions with whom they have a sexual relationship is significant. See Wadlington, "Sexual Relations After Separation or Divorce: The New Morality and the Old and New Divorce Laws," 63 Va.L.Rev. 249 (1977). Many of them are parents of children from dissolved marriages, and therefore, trial courts across the country have been confronted in recent years with the problem of developing custody and visitation orders affecting these children. My review of cases from other jurisdictions indicates that visitation restrictions are not uncommon. The most often used is the prohibition of overnight visits; also common is a prohibition against the presence of the parent's lover during visits. See generally Annot., 40 A.L.R. 812 (4th ed. 1983).

Some jurisdictions have upheld visitation restrictions and custody changes based solely on a parent's cohabitation with a person to whom he or she is not married.

The New Jersey appellate division affirmed an order forbidding the presence of the father's girlfriend overnight when his children were visiting, holding that the moral values of the custodial parent can be considered in imposing visitation restraints. DeVita v. DeVita, 145 N.J.Super. 120, 366 A.2d 1350 (App.Div.1976). The court stated:

"We do not decide whether the mother's views are correct or incorrect but she has a rightful interest in the moral welfare of the children which is entitled to respect. Further it must be acknowledged that her views are not contrary to those of a substantial body of the community."

145 N.J.Super. at 128, 366 A.2d at 1354.

The Virginia Supreme Court affirmed an order transferring custody from the mother to the father on the sole ground that the mother was openly living with a man in an adulterous relationship in the same home with the children. Brown v. Brown, 218 Va. 196, 237 S.E.2d 89 (1977). It was not the mother's relationship per se that rendered her unfit to have custody, but the fact that she conducted the affair in the children's presence. There the court said:

"In all custody cases the controlling consideration is always the child's welfare and, in determining the best interest of the child, the court must decide by considering all the facts, including what effect a nonmarital relationship by a parent has on the child. The moral climate in which children are to be raised is an important consideration for the court in determining custody, and adultery is a reflection of a mother's moral values. An illicit relationship to which minor children are exposed cannot be condoned. Such a relationship must necessarily be given the most careful consideration in a custody proceeding."

237 S.E.2d at 91.

A few years later, that court was presented with a case involving a custodial parent who engaged in an active homosexual relationship in the same residence as the child. Roe v. Roe, 228 Va. 722, 324 S.E.2d 691 (1985). The mother, who had relinquished custody while undergoing treatment for cancer, petitioned to regain custody of the child when she discovered that the father was living with another man. In reversing the trial court's joint custody order, the court stated:

"We conclude that the best interests of the child will only be served by protecting her from the burdens imposed by such behavior, insofar as practicable. In the circumstances of this case, this necessitates not only a change of custody to the mother, but also a cessation of any visitations in the father's home, or in the presence of his homosexual lover, while his present living arrangements continue."

324 S.E.2d at 694.

In Jarrett v. Jarrett, 78 Ill.2d 337, 36 Ill.Dec. 1, 400 N.E.2d 421 (1979), cert. denied, 449 U.S. 927, 101 S.Ct. 329, 66 L.Ed.2d 155 reh'g denied, 449 U.S....