Naylor v. Oden

• Decision Date: 02 June 1982
• Citation: 415 So.2d 1118
• Parties: Patricia Ann Oden NAYLOR v. Lester ODEN and Carol Oden. Civ. 3096.
• Court: Alabama Court of Civil Appeals

Page 1118

415 So.2d 1118

Patricia Ann Oden NAYLOR v. Lester ODEN and Carol Oden.

Civ. 3096.

Court of Civil Appeals of Alabama.

June 2, 1982.

Charles A. McGee and W. G. Hawkins, Fort Payne, for appellant.

Terry Gillis of Kellett & Gillis, Fort Payne, for appellees.

HOLMES, Judge.

The paternal uncle and his wife, by prior orders of the Circuit Court of DeKalb County, were awarded custody of their niece, now age seven. The mother of the child was given visitation privileges of three hours every other month at the home of the uncle and aunt.

Approximately three years after the last of the aforementioned orders the paternal uncle and aunt sought, by modification, to terminate the mother's visitation. The mother counter-petitioned, requesting that she be awarded custody or that visitation be extended.

After an ore tenus hearing, the learned trial judge terminated the mother's visitation privileges.

The mother appeals, primarily contending that the trial court erred in terminating visitation. We agree with the mother's contention and reverse and remand.

We do not deem it necessary nor prudent to set out in detail the facts of the instant appeal. Also, we note at the outset the oft quoted presumption in matters pertaining to visitation, i.e., that the trial court has wide discretionary powers in the settlement of visitation rights. Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980).

The record in pertinent part reveals the following:

The child has lived with the paternal uncle and aunt for the past four years. The uncle and aunt provide for all of the child's material needs. The aunt and uncle love the child and refer to her as their own daughter. The child has her own bedroom in the home. The uncle and aunt help the child with her school work. The child has a good relationship with the teenage son of the uncle and aunt.

The mother of the child has remarried and lives in a house with her new husband. The mother has developed a good reputation in the community according to the mother's landlord and the mother's pastor. The mother's eleven year old son lives with the mother. The mother occasionally babysits for other children in her home.

The mother has regularly exercised her visitation privileges. Except for the past year, the mother would come to the home of the aunt and uncle every two months to visit with her daughter. The mother would sometimes be accompanied by the child's maternal grandmother. Often, the mother would bring the child a small gift.

The evidence at best of a detrimental nature regarding the issue of visitation is that the child would become upset immediately after the mother's visits. The paternal aunt and uncle indicated the child would become fretful and would have trouble sleeping. Additionally, the aunt testified that during the past year, when the mother's visits were less frequent, the child was less upset and adjusted better in school. The evidence indicates that the child for the past year has been attending a special education class for children with emotional problems.

It is unfortunately true that divorce may, to varying degrees, adversely affect the emotional tranquility of children from broken homes. It is, however, not at all clear in the instant case that the sole cause of the child's fretfulness and nightmares were the mother...