Phillips v. Phillips

• Decision Date: 19 March 1993
• Parties: Brenda J. PHILLIPS v. Kenneth PHILLIPS. 2910576.
• Court: Alabama Court of Civil Appeals

Page 410

622 So.2d 410

Brenda J. PHILLIPS v. Kenneth PHILLIPS.

2910576.

Court of Civil Appeals of Alabama.

March 19, 1993.

Banks T. Smith, Dothan, for appellant.

Bryant F. Williams, Jr., Ozark, for appellee.

THIGPEN, Judge.

This is a child custody modification case.

Brenda J. Phillips (mother) and Kenneth Phillips (father) divorced in 1987. Custody of the parties' two children was awarded to the mother, subject to visitation with the father, and the father was ordered to pay support. The evidence disclosed that following the divorce, both parties continued to reside within the same area and that the parties had frequent contact with the children and with each other. The record reveals that from February 1989, until the end of school in May 1989, the children resided with the father for the convenience of the mother. The children then returned to the care of the mother. By agreement of the parties, from August 1991, until the date of the hearing in June 1992, the children again resided primarily with the father for school purposes and for the convenience of the mother.

The record disclosed that since the divorce and while the children were living with the mother, the mother had moved frequently and had resided at several different places. The mother had recently moved to an apartment in Daleville, Alabama. The father has continued to reside in the marital residence. He had shared this residence with his girlfriend for approximately three and one-half years prior to the hearing. The mother has had relationships with other men; however, there was no evidence that any sexual conduct occurred in the presence of the children. After the close of the 1992 school year, the father filed this petition seeking custody of both children. Following ore tenus proceedings, the trial court ordered a change in custody from the mother to the father, and the mother appeals.

The mother contends that the trial court erred in refusing to find that the father's sexual misconduct with the live-in girlfriend and a seventeen-year-old had a detrimental effect upon the children; that the order of the trial court changing custody is contrary to the holding in Ex parte Couch, 521 So.2d 987 (Ala.1988); and that the trial court applied the wrong standard for a change of custody.

At the outset, we note that our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So.2d 440 (Ala.Civ.App.1989), and Vail v. Vail, 532 So.2d 639 (Ala.Civ.App.1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So.2d 1343 (Ala.Civ.App.1990); Flowers v. Flowers, 479 So.2d 1257 (Ala.Civ.App.1985).

This court pretermits as unnecessary a detailed summary of the evidence. The mother argues that the trial court's refusal to find the father's sexual misconduct to have a detrimental effect on the children was against the great weight of the evidence. There was testimony regarding the father's indiscreet behavior, and the trial court noted its disapproval of the father's living with a woman without the benefit of marriage. In custody cases, indiscreet behavior, such as living with someone of the opposite sex without the benefit of marriage, is a factor to be considered, and there must be evidence presented showing that such misconduct has a substantial detrimental effect on the children. Smith v. Smith, 464 So.2d 97 (Ala.Civ.App.1984). Such misconduct is not evidence of a substantial detrimental effect on a child in the absence of any proof of harm to the child. Jones v. Haraway, 537 So.2d 946, 947 ...