Lipsey v. Lipsey

• Decision Date: 23 May 1984
• Citation: 450 So.2d 1095
• Parties: Maylene Gabbert LIPSEY v. T. Coleman LIPSEY. Civ. 4130.
• Court: Alabama Court of Civil Appeals

Page 1095

450 So.2d 1095

Maylene Gabbert LIPSEY v. T. Coleman LIPSEY.

Civ. 4130.

Court of Civil Appeals of Alabama.

May 23, 1984.

Charles J. Najjar and J. Gary Pate of Najjar, Najjar, Boyd & Pate, Birmingham, for appellant.

Roderick Beddow, Jr. and James M. Fullan, Jr. of Beddow, Fullan & Vowell, Birmingham, for appellee.

BRADLEY, Judge.

Maylene Gabbert Lipsey and T. Coleman Lipsey were married May 14, 1966 and lived together as husband and wife until February 1983. There were four children born of this marriage: T.C. Lipsey, Jr., David Lipsey, Amy Lipsey, and John Lipsey.

Mrs. Lipsey filed a complaint for divorce on February 23, 1983, averring that there had been an irretrievable breakdown of the marriage.

The case was heard in August 1983 and a final decree of divorce was entered on November 7, 1983. Mr. Lipsey was granted the care, custody, and control of the four minor children with certain visitation rights invested in Mrs. Lipsey. Thereafter, Mrs. Lipsey perfected this appeal.

Mrs. Lipsey's sole argument is that the trial court abused its discretion in awarding custody of the minor children to Mr. Lipsey. It is well-settled law in Alabama that when evidence in a custody matter is presented ore tenus the finding of the trial court is presumed correct. Moreover, the trial court's determination will not be disturbed absent an abuse of discretion. Rosser v. Rosser, 355 So.2d 717 (Ala.Civ.App.1977). That presumption, however, may be overcome by the absence of material evidence supporting the finding. McRight v. McRight, 444 So.2d 869 (Ala.Civ.App.1984).

Mrs. Lipsey contends that there is an absence of evidence to support the trial court's finding and that the trial court misapplied the law to the facts. She says that the correct legal standard to be applied in awarding the custody of children in an original divorce proceeding is that enumerated in Ex parte Devine, 398 So.2d 686 (Ala.1981). We agree. The Devine case sets out certain factors for consideration by a trial court in making a custody determination, which include the following: (1) sex and age of the children; (2) their emotional, social, moral, material, and educational needs; (3) the respective home environments offered by the parties; (4) the characteristics of those seeking custody, including age, character, stability, mental and physical health; (5) the capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the children; (6) the interpersonal relationship between each child and each parent; (7) the interpersonal relationship between the children; (8) the effect on the child of disrupting or continuing an existing custodial status; (9) the preference of each child, if the child is of sufficient age and maturity; (10) the report and recommendation of any expert witnesses or other independent investigator; (11) available alternatives; and (12) any other relevant matter the evidence may disclose.

The evidence shows that Mrs. Lipsey had an adulterous affair for about two years prior to the divorce. There were many instances of very lengthy telephone conversations between Mrs. Lipsey and her alcoholic paramour. The telephone calls were made from various places, including telephone booths. On many occasions several of Mrs....