McNeill v. McNeill

• Decision Date: 07 April 1976
• Parties: Danny McNEILL v. Connie Sue McNEILL (Day). Civ. 742.
• Court: Alabama Court of Civil Appeals

Page 387

332 So.2d 387

Danny McNEILL v. Connie Sue McNEILL (Day).

Civ. 742.

Court of Civil Appeals of Alabama.

April 7, 1976.

Rehearing Denied May 12, 1976.

James M. Prestwood, Andalusia, for appellant.

Powell & Sikes, Andalusia, for appellee.

BRADLEY, Judge.

This is an appeal from a decree of the Circuit Court of Covington County slightly modifying a divorced mother's privilege of visitation (temporary custody) with the minor child of the parties' marriage. Appellant-father argues that the trial court erred in not requiring the mother to post bond or other security prior to removing the child from Alabama jurisdiction.

The parties were divorced on February 23, 1973. Custody of the child was awarded to the father, so long as the custody was maintained at the home of the child's paternal grandparents. The mother was granted visitation privileges with the child on those weekends of each month on which the second and fourth Saturdays occur. Such weekend period was to begin at 5:00 p.m. on Friday and terminate at 5:00 p.m. Sunday. Visitation privileges were also granted for certain holidays and for the entire month of June. The divorce decree further specified that all exchanges of custody of the child be made at the police station in Andalusia.

There were no restrictions on the places or manner in which the visitation privilege was to be exercised, other than those noted above. There was no requirement that the mother notify the father in advance of her intention to exercise her visitation privilege.

On October 3, 1975 the mother filed a petition for modification stating that the appellant had failed to allow the visitations permitted by the divorce decree, and that the father and child no longer resided with the paternal grandparents. The petition requested that the father be punished for contempt, and be required to pay all attorneys' fees in the proceeding; and that the permanent custody of the child be placed in the mother. The father's answer, filed November 10, 1975, denied interference with the visitation privileges, and stated that appellee had allowed two years to elapse without attempting to exercise said privileges. That same day a hearing was held wherein the trial judge heard oral testimony taken from the parties.

The decree appealed from was entered on November 12, 1975. The father was found innocent of contempt, and the custody and visitation provisions of the original divorce decree were affirmed in all respects with the following exception:

'. . . (T)he commencement of the Plaintiff's periods of visitation should commence at 8:00 o'clock a.m. on Saturdays and end at 5:00 o'clock p.m. on Sundays and provided further that the Plaintiff be required to give the Defendant 24 hours notice either by letter or by telephone each time that she expects to exercise the rights of visitation in order that the Defendant will not have to prepare the child for visitation unless the Plaintiff is in fact...