Phillips v. Phillips
| Decision Date | 07 August 1974 |
| Citation | 53 Ala.App. 191,298 So.2d 613 |
| Parties | Sharon Aletha PHILLIPS v. Ira PHILLIPS, Jr. Civ. 350. |
| Court | Alabama Court of Civil Appeals |
Roy D. McCord, Gadsden, for appellant.
Jack W. Torbert, Gadsden, for appellee.
Appellee petitioned the lower court to change or modify a prior decree with regard to visitation rights which had been granted him pertaining to his minor child who was in the custody of appellant. Appellant filed an answer to the petition of appellee and further filed a cross petition for increased support payments for the minor child of the parties.
The petition to modify and the cross petition were argued before the trial court which heard the testimony Ore tenus on November 13, 1973. Thereafter, the court entered its decree which extended the visitation rights of appellee and increased the child support payments. The court further taxed all costs to appellee which included a $200 attorney's fee awarded by the court to appellant's attorney.
From this decree, appellant, through her able and distinguished counsel, appeals and argues fourteen assignments of error in the lower court's decree. Assignments 1 through 10 deal with the visitation rights granted appellee; assignment 11 urges the insufficiency of the increased child support; assignment 12 states the award of attorney's fee is insufficient; assignment 13 alleges the lower court erred in granting relief to appellee which he did not seek and which the evidence did not warrant; and assignment 14 states the lower court erred in failing to date its decree.
The testimony at trial consisted of testimony by appellee-father, appellant-mother, and two attorneys who testified regarding a reasonable attorney's fee.
The father stated that since the prior decree rendered by the court, he had moved to an apartment which he and a roommate shared, having, prior to the move, lived in the home of his parents. Appellee testified he had facilities there which would enable him to keep his daughter himself, and that he wanted the court to either give him the custody of his child, or increase his visitation rights.
The prior decree had provided that appellee could see his child every other Sunday from 3:00 P.M. to 6:00 P.M. at his residence. Testimony showed the mother normally took the child to the father for this visit. Appellee also had a right of reasonable visitation, whereby he could visit the child at appellant's home, and that the visits were 'extremely unpleasant.' We note, furthermore, that the child is over a year older since the earlier decree.
Testimony concerning appellee's financial condition showed that at the time of the hearing he was employed by Eagle Tires and had a take-home pay of $555.10 per month. He also received $259.47 net per month from teaching at Gadsden State Junior College. There was testimony that he would be resigning from his teaching job at the end of the quarter because of circumstances requiring his services at the tire company.
Appellee stated he owned 1,000 shares of stock in Eagle Tires, Inc., of which there are 65,000 shares outstanding, and he owned 1,000 shares of Ira Phillips, Inc., which also had 65,000 shares outstanding. Appellee testified he received $250 in dividends from both corporations for the year 1973. Appellee further stated he was indebted to The American National Bank for $13,000 and to his father for $2,500.
Testimony showed that appellee's income had increased since the earlier decree awarding child support payments.
Appellant testified that the child, who was approximately two years old at the time of trial, was very energetic, easily hurt, and easy to catch cold. She stated the child was very attached to her and that she didn't feel anyone else could take care of the child as well as she did. Appellant stated that she objected to the baby being carried away from home overnight. Appellant further testified that the present allotment of approximately $150 per month child support was insufficient, and that she thought it would take $60 to $65 per week to reasonably support the baby.
At the outset, we note the law of this state is clear that on appeal we view a decree rendered after a hearing Ore tenus as if it were a jury verdict, and we will reverse such decree only if, after considering all the evidence, we conclude that it is clearly and palpably wrong. Lipham v. Lipham, 50 Ala.App. 583, 281 So.2d 437; 2 A Ala.Dig., Appeal and Error, k934(2) and 1009(1), and cases cited therein. Additionally, in this instance, under the facts, the court had the power to modify the visitation rights.
Appellant argues error in the granting of increased...
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