Modling v. Modling, 4 Div. 10

• Citation: 232 So.2d 673,45 Ala.App. 493
• Decision Date: 04 March 1970
• Docket Number: 4 Div. 10
• Parties: Joy L. MODLING v. Thomas C. MODLING.
• Court: Alabama Court of Civil Appeals

Page 673

232 So.2d 673

45 Ala.App. 493

Joy L. MODLING v. Thomas C. MODLING.

4 Div. 10.

Court of Civil Appeals of Alabama.

March 4, 1970.

Homer W. Cornett, William R. Belcher, Phenix City, for appellant.

J. Pelham Ferrell, Phenix City, for appellee.

BRADLEY, Judge.

Suit was filed in the Circuit Court of Russell County, Alabama, in Equity, by appellant, seeking a divorce from appellee on the ground of cruelty, custody of the two minor children, child support, temporary and permanent alimony, attorney's fees, and appellee's undivided one-half interest in a parcel of real estate free and clear of all liens and encumbrances. The appellant then amended the complaint to ask for temporary custody of the children pending further orders of the court. An answer was filed to the petition seeking temporary custody.

A hearing was then held on the request for temporary custody, and the court awarded custody to the father.

The appellee filed an answer to the complaint as amended, and included therewith a cross-bill of complaint seeking a divorce from appellant on the ground of cruelty, custody of the two children, and certain items of household furniture, appliances and other furnishings.

The appellant then demurred to the cross-bill and also answered it. The demurrer to the cross-bill was later overruled.

The cross-bill was amended to request a divorce from appellant on the additional ground of adultery. An answer was filed to the cross-bill as amended.

After the pleadings were settled, the case was heard on the issues raised by the bill of complaint as amended, and the cross-bill as amended, plus the answer to each.

The court entered a decree granting a divorce to the appellant, awarding the real estate owned by the parties to the appellant and custody of the two children to the appellee.

From the decree awarding custody of the children to appellee, appellant appeals to the Supreme Court. The case was later transferred to this court.

There were three assignments of error, two of which questioned the trial court's child custody award, and the other questioned the trial court's failure to award child support to appellant for the times the children are to visit with her.

It is well established in Alabama that the primary and controlling inquiry in custody proceedings is always what is best for the child or children. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145.

It is an equally well established principle in this state, that where evidence in a child custody case is heard orally by the trial court, the court's findings will not be disturbed on appeal unless the reviewing court determines that such findings were plainly and palpably wrong. Stairs v. Stairs, 283 Ala. 263, 215 So.2d 591; and Snead v. Snead, 279 Ala. 344, 185 So.2d 135.

The evidence in this case was in conflict as to whether appellant or appellee were fit persons to have custody of the two children.

There was evidence that appellant worked in the daytime, retained a maid to clean the house and care for the children until she or appellee arrived home in the afternoon. There was evidence that for the past year, appellant was away from home at night more than she was at home. The testimony also showed that the appellee-husband cared for the children at night when the appellant was away from home, in that he fed them, bathed them, and got them ready for bed. He also took them to the park and to neighbors for visits. There was evidence that a man had been seen leaving appellant's house where she lived alone, late at night, after the complaint was filed, but before the divorce decree.

There was evidence that appellant was highly...