Mann v. Mann
| Decision Date | 04 December 1998 |
| Citation | 725 So.2d 989 |
| Parties | William D. MANN v. Kimberly H. MANN. |
| Court | Alabama Court of Civil Appeals |
Michael J. Cartee of Shelby & Cartee, L.L.C., Tuscaloosa, for appellant.
J.O. Isom, Hamilton, for appellee.
William D. Mann ("the husband") appeals from a judgment entered by the Marion County Circuit Court that, among other things, divorced him and his wife, Kimberly H. Mann ("the wife").
The husband and the wife were married in 1985; the parties' two minor children were born in 1994 and 1996. The parties first experienced marital discord while they were living in Monroe, Louisiana, when the wife found telephone bills that showed that the husband had been calling another woman. When the wife confronted the husband about the telephone bill, the husband moved out of the parties' home and into a separate residence. In October 1996, the wife moved to Alabama with the parties' children; the husband visited the wife and the children on weekends. In February 1997, the wife and the children moved back to Louisiana after the parties had discussed reconciling.
In September 1997, problems arose between the wife and the husband's paramour, and the husband asked the wife to take the children back to Alabama so he could confront his paramour. The following week, the husband resigned from his job and began counseling. Soon after, the husband told the wife that he loved his paramour; the wife filed a complaint seeking a divorce on November 4, 1997.
On March 19, 1998, following an ore tenus proceeding, the trial court entered a judgment of divorce that, among other things, granted sole custody of the parties' two minor children to the wife; granted the husband restricted supervised visitation; ordered the husband to pay monthly child support of $1,433; and divided the marital assets. The judgment also placed the following restrictions on the husband's right to visit his children:
On appeal, the husband contends that the trial court erred (1) in ordering him and his paramour to submit to the court and to opposing counsel medical records and a sworn statement based on the medical records from a licensed physician that relate to venereal diseases in general and to the herpes virus specifically, which, he contends, is in violation of his constitutional right against unreasonable searches and seizures; (2) in ordering him to attend church services and Sunday school with the children on his Sunday visitations, which, he contends, is in violation of his constitutional right to freedom of religion; (3) in limiting him to restricted supervised visitation; (4) in imputing income to him in computing his child support obligation; and (5) in dividing the marital property.
After a careful examination of the record, we note that the husband failed to raise the first two issues at trial. Moreover, the husband failed to file any post-judgment motion raising these issues. The law is settled that an issue not raised before the trial court cannot be raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992). See also Cauthen v. Yates, 716 So.2d 1256 (Ala.Civ.App.1998). "Also, it has long been the law that constitutional issues not raised in the trial court below will not be considered for the first time on appeal." Ingram v. Ingram, 602 So.2d 418, 420 (Ala.Civ.App.1992). Because these issues were not presented to the trial court, we cannot consider them in this appeal.1
The husband contends that the trial court erred in imposing the restrictions it placed on his visitation with his children. He argues that the trial court abused its discretion because the extent of supervision required of his visitation is not supported by the evidence.
We recognize that the determination of visitation rights for the noncustodial parent rests within the discretion of the trial court, and we will not reverse a judgment determining visitation except for an abuse of that discretion. Ladewig v. Moxley, 589 So.2d 738 (Ala.Civ.App.1991). In exercising its discretion in awarding visitation rights, the trial court's primary consideration must be the best interests and welfare of the children, and each case must be decided on its own facts. Durham v. Heck, 479 So.2d 1292 (Ala.Civ.App.1985).
The wife testified that she was scared that the husband might refuse to return the children. However, the record contains no evidence that the husband is a flight risk, nor is there any evidence that the husband has been unreliable in visiting the children. The wife also testified that she did not want the husband to have overnight visitation because she was worried about the "health risk." However, the wife presented no evidence to support her assumption that the husband or his paramour had genital herpes, or that the husband and his paramour would be a health risk to the children. Although the record does contain evidence that the husband consumed alcohol regularly, the evidence does not show that the husband's use of alcohol ever posed a danger to the children. The wife also testified that the husband had never been arrested for any conduct related to alcohol, such as public intoxication or driving under the influence.
The wife testified that the husband had been a good father during the first year of the parties' oldest child's life. She also stated that she had told friends and relatives that the husband had been a good father. However, the wife also stated that the husband had very little participation in caring for the children. The wife's mother testified that the children were excited to see the husband when he came for visitation, but that the husband did not interact with, or seem to be interested in playing with the children. She also stated that the children wanted to know where she was at all times and would come looking for her every so often. The husband disputed this evidence. He testified that during his visitation with the children, they react to him and are very happy when they are with him. He testified that the youngest child calls him "Dada." He stated that on the one occasion he was allowed to leave the home of the wife's mother during visitation, he and the children went to a park, to a McDonald's restaurant, and to a Wal-Mart department store; that he and the children had had a "big time"; and that the children were devastated when he left.
The husband stated that he believed it would benefit his relationship with the children and their relationship with him if he were able to spend more unfettered time with them, without the scrutiny of the wife's mother. He stated that visitation with the children at the wife's mother's house was awkward. The record also indicates that the husband wants to reestablish his relationship with the children. He testified that the most important thing to him is to visit with the children as much as possible. There is evidence that the husband has visited with the children as much as he has been allowed, even though the required travel has been difficult and inconvenient for him.
The trial court's judgment requires the husband to pick up the children at 8:00 a.m. on Saturday morning in Winfield, Alabama; to drive approximately two hours to Tuscaloosa, Alabama; to visit with the children for approximately six hours; and then to return to Winfield.2 On Sunday, the husband is required to pick the children up in Winfield at 9:00 a.m.; to attend Sunday school and church services with the children until approximately noon; to drive to Tuscaloosa after church; to visit with the children for approximately two hours; and then to drive the children back to Winfield. As presently structured, the husband's visitation requires the children, ages two and four, to be in the car for approximately eight hours on every weekend that he visits them. Under the circumstances of this case, we cannot conclude that requiring the children to be in an automobile for such long periods is in their best interests. Accordingly, we reverse that portion of the trial court's judgment imposing these restrictions upon the husband's visitation with the children, and we remand this case to the trial court for the entry of a judgment containing visitation provisions that are consistent with the best interests of the children.
To continue reading
Request your trial
-
Davis v. Davis
...each case must be decided on its own facts.’ " Carr v. Howard, 777 So. 2d 738, 742 (Ala. Civ. App. 2000) (quoting Mann v. Mann, 725 So. 2d 989, 992 (Ala. Civ. App. 1998) ). The mother complains that the trial court should have amended the judgment to make the father solely responsible for t......
-
Webb v. Webb
...of the children, and each case must be decided on its own facts. Durham v. Heck, 479 So.2d 1292 (Ala.Civ.App.1985)." Mann v. Mann, 725 So.2d 989, 992 (Ala. Civ.App.1998). At trial, the wife testified that the husband had a problem with excessive alcohol consumption. The wife testified that ......
-
Casey v. Casey
...within the discretion of the trial court and must be decided based upon the particular facts of each case. See, e.g., Mann v. Mann, 725 So.2d 989, 992 (Ala.Civ.App.1998) ; see also M.W.W. v. B.W., 900 So.2d 1230, 1232–33 (Ala.Civ.App.2004). The former husband's challenge to the requirement ......
-
Dodd v. Burleson
...is to impose such a rigorous visitation schedule that would have such adverse effects on the minor children. Compare Mann v. Mann, 725 So.2d 989, 993 (Ala.Civ.App. 1998) (reversing, as an abuse of discretion, a visitation judgment that "require[d] the children, ages two and four, to be in t......