Nesmith v. Nesmith
| Decision Date | 25 August 1982 |
| Citation | 419 So.2d 247 |
| Parties | William Gerald NESMITH, Jr. v. Brenda Joyce NESMITH. Civ. 3283. |
| Court | Alabama Court of Civil Appeals |
Walter E. Duffey, Huntsville, for appellant.
Gary L. Aldridge of Aldridge & Haddock, Decatur, for appellee.
This is a divorce case.
The wife sought a divorce from the husband. After an ore tenus hearing the trial court denied the parties a divorce. Thereafter, within thirty days, the wife filed a Rule 59, A.R.Civ.P., motion to alter, amend, or vacate the court decree, or in the alternative, motion for a new trial. The trial court, in response to the motion, took additional testimony at a hearing on the motion. The divorce was then granted on grounds of irretrievable breakdown of the marriage. Custody of the parties' two minor children was awarded to the wife.
The husband, through able counsel, appeals and pertinently contends the trial court erred in allowing additional testimony at the hearing on the rule 59 motion, and in entrusting permanent custody of the minor children to the wife.
The dispositive issues on appeal are whether the trial court abused its discretion in taking the aforesaid actions. We find no such abuse as to require reversal, and affirm.
We do not deem it necessary nor prudent to set out in detail the pertinent facts.
Rule 59 states:
"On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment." (Emphasis supplied.)
Clearly, in this instance, under the language of the rule itself, the trial court's admission of additional evidence was within its discretion. Rayford v. Rayford, 390 So.2d 636, 637 (Ala.Civ.App.1980). See also, Trauner v. Lowrey, 369 So.2d 531 (Ala.1979); Dale County Department of Pensions and Security v. Robles, 368 So.2d 39 (Ala.Civ.App.1979).
We particularly note that the divorce was granted on grounds of irretrievable breakdown of the marriage. There was ample testimony during the original hearing to support a divorce decree on those grounds even though the trial court did not initially grant the divorce.
After an ore tenus hearing, the trial court awarded custody of the two minor children to the mother. The father as indicated appeals, contending the trial court abused its discretion in granting custody to the wife since the wife has admitted committing adultery, and there was no finding of marital misconduct on the father's part.
The moral unfitness of a parent sufficient to deprive her of custody must be such as to have a direct bearing upon the welfare of her child. A parent will not...
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Ex parte Pankey
...in order for adultery to be relevant to the custody determination.11 This Court has never reviewed Hearold or Nesmith v. Nesmith, 419 So.2d 247 (Ala. Civ.App.1982), upon which the Court of Civil Appeals relied for support in Hearold. This Court has never burdened a parent before it with the......
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Taylor v. Taylor
...damaging testimony at trial about the wife's moral fitness. The wife asserts that according to our decision in Nesmith v. Nesmith, 419 So.2d 247 (Ala.Civ.App.1982), a parent should not be denied custody for every act of We note that the award of custody of a child is a matter addressed to t......
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Handley v. Handley
...of her children, so long as it is shown that such conduct has adversely affected the best interests of the children. Nesmith v. Nesmith, 419 So.2d 247 (Ala.Civ.App.1982). The evidence strongly shows that the mother and the adoptive father love the children and properly care for them. The mo......
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Santmier v. Santmier
...We agree with the wife that a parent should not be denied custody for every act of indiscretion or immorality. Nesmith v. Nesmith, 419 So.2d 247 (Ala.Civ.App.1982). In this case, however, such evidence was sufficient to tip the balance in the husband's The wife also contends that the trial ......