Quintanilla v. George

• Decision Date: 29 September 1976
• Citation: 340 So.2d 804
• Parties: Dionicio QUINTANILLA, Jr. v. Nelda B. GEORGE. Civ. 929.
• Court: Alabama Court of Civil Appeals

Page 804

340 So.2d 804

Dionicio QUINTANILLA, Jr. v. Nelda B. GEORGE.

Civ. 929.

Court of Civil Appeals of Alabama.

Sept. 29, 1976.

Rehearing Denied Nov. 3, 1976.

Benjamin E. Pool, Montgomery, for appellant.

Joe B. Thompson, Jr., Brewton, for appellee.

BRADLEY, Judge.

The matter now before this court was initiated when Mr. Quintanilla, the appellant herein, filed a petition in the Circuit Court of Escambia County, Alabama, seeking to modify a decree of the Domestic Relations Court of Dallas County, Texas, divorcing the parties to this suit and granting custody of the parties' minor child, Nelda Denise Quintanilla, to the now Nelda B. George, mother of the child and appellee herein. Mr. Quintanilla sought to modify the former decree by having custody of the child removed from the mother and placed with himself.

On September 10, 1975 the Circuit Court of Escambia County entered a decree granting custody of the child to Mr. Quintanilla. In that decree the court said:

'ORDERED, ADJUDGED, and DECREED as follows:

'1. The custody of the child of the parties, namely, Nelda Denise Quintanilla, is hereby granted to Dionicio Quintanilla, Jr., and the said Nelda B. George is hereby ordered to deliver Nelda Denise Quintanilla to her father's custody at Dallas, Texas on or before the 15th day of September, 1975, PROVIDED that Dionicio Quintanilla, Jr., prior to that date, shall post a $750.00 cash bond with the Circuit Court of Escambia County, Alabama. If the said Dionicio Quintanilla, Jr. shall fail to return the said Nelda Denise Quintanilla to the State of Alabama as may be ordered in the future to do so by the Circuit Court of Escambia County, Alabama, this bond shall be forfeited.

'2. It is further ORDERED, ADJUDGED, and DECREED that the matter of the custody of Nelda Denise Quintanilla shall be subject to modification by this court during the minority of said child and this court shall retain the right to entertain a motion to modify this judgment in the future, should the Court be made aware that the Defendant, Nelda B. George, has gotten her private life straightened out and is no longer living in an immoral environment.'

On or about December 11, 1975, the appellee filed a petition in the Escambia County Circuit Court seeking a modification of the September 10, 1975 custody decree, alleging that David L. George was divorced by the Circuit Court of Mobile County on September 17, 1975 and that on December 2, 1975 the said David L. George and appellee were married by the Probate Judge of Dallas County, Alabama. Petitioner stated that her private life was straightened out and she was no longer living in an immoral environment and requested that the custody of the child be returned to her.

After a hearing the trial court on May 17, 1976 entered judgment awarding custody of the child to the appellee, finding:

'4. The court is rendering this decree based on its findings that the plaintiff, Nelda B. George, was legally and lawfully married in Selma, Dallas County, Alabama in accordance with prior instructions of this court for the plaintiff to get her private life straightened out because the court is convinced that the plaintiff has been a good mother and has cared for her child satisfactorily in all respects but at the time of the last hearing in this matter the plaintiff was not lawfully married although she had made every effort to consummate marriage with her present husband, David Lloyd George but was unable to do so because of the difficulties in the long pending divorce and action in Mobile County, Alabama and the court's ruling in the previous case was based on plaintiff's marital status at that time which was technically adultery and the court finds the plaintiff's marriage is stable at the present time. That she enjoys a wholesome and proper homelife and that the plaintiff loves her child and is now able to offer her a moral environment and that it would be in the best interest of the child for the decree of September 10, (1975) to be modified so the care, custody and control of the child is awarded to the plaintiff subject to rights of visitation and association on the part of Dionicio Quintanilla, Jr. . . .'

The appeal is from this decree.

The evidence in the case shows that the parties to this proceeding were married in 1967 and divorced in Texas in 1971. Custody of the only child of the marriage, a girl named Denise who is now between eight and nine years of age, was awarded to the appellee by agreement. The appellant continued to live in Texas; the appellee moved back to Alabama with Denise and three children by a former marriage.

Denise remained in the appellee's custody until September 10, 1975, when the Escambia County Circuit Court placed custody with the appellant. It appears that at that time appellee was living with David L. George. The evidence is uncertain as to when Mr. George's previous wife commenced divorce proceedings in the Circuit Court of Mobile County, but no decree was awarded in that proceeding until September 1975. The Escambia County Circuit Court gave custody of Denise to the appellant for the sole reason that appellee was living with a man to whom she was not married, apparently concluding that the child was being reared in an immoral environment which was detrimental to her best interests and welfare and that the child would be better off with the father. The court in its decree specifically retained jurisdiction to return primary legal custody to the appellee once the immoral setting was rectified. There was no appeal from this decree.

The facts show that as soon as Mr. George received a divorce from his wife, he and appellee were married. Appellee then informed the court that she was legally married to Mr. George, that her private life was straightened out, that she was no longer living in an immoral environment, and that she wanted primary custody of Denise placed back with her as the court's decree of September 1975 suggested would occur should the named impediment be removed. The Escambia County Circuit Court, upon being informed of this development, found the moral climate enhanced and decreed that the primary custody of the child Denise be returned to appellee in accordance with its previously retained jurisdiction for this specific purpose.

Other evidence before the court showed that both mother and father love this little child and make every effort to provide for her creature comforts, education and welfare. No unfitness of either parent was alluded to in the...