Shoemaker v. Shoemaker
| Decision Date | 25 April 1990 |
| Citation | 563 So.2d 1032 |
| Parties | Pal Charlie SHOEMAKER v. Cynthia Breed SHOEMAKER. Civ. 7390. |
| Court | Alabama Court of Civil Appeals |
Mark N. Chambless of McInnish, Bright & Chambless, Montgomery, for appellant.
D. Patrick Harris of Harris & Harris, Montgomery, for appellee.
L. CHARLES WRIGHT, Retired Appellate Judge.
The parties to this appeal were divorced by a decree of the Circuit Court of Montgomery County. A settlement agreement was incorporated into their divorce decree. No children were produced from their union.
The wife had a child by a previous marriage. She has custody of that child by a prior divorce decree.
A part of the parties' settlement agreement, entitled "Property Settlement Agreement," provides:
Pal Charlie Shoemaker, hereinafter "former husband," filed a petition to hold Cynthia Breed Shoemaker, hereinafter "former wife," in contempt "for her willful violation of this Court's Order by refusing [to allow the exercise of the former husband's] visitation rights." The former wife's answer asserted that, pursuant to her "prior" divorce decree (from the minor child's natural father), the natural father was awarded certain visitation rights with their child, Ryon Scott Clark, that the natural father was exercising these visitation rights, and that the exercise of visitation rights by the former husband/stepparent, Pal Charlie Shoemaker, would not be in the best interests of the minor child.
In a preliminary order granting the former husband's motion for continuance, the trial court directed that at the impending hearing:
"[T]he Former Husband/Petitioner shall show to the Court upon what ground he alleges that this Court had or now has jurisdiction to determine visitation rights [with] a child not born of the marriage and not adopted by the [former husband] in a divorce action between the parties; and further upon what grounds this Court would have jurisdiction to make a finding of contempt [upon violation] of such an order."
After arguments of counsel were presented, the trial court issued an order which dismissed the former husband's petition for failure to state a claim upon which relief can be granted. He appeals that dismissal.
Under the common law and our statutes, natural parents have a prima facie legal right to the custody, care, and control of their children to the exclusion of all others. See, Mousseau v. White, 532 So.2d 1023 (Ala.Civ.App.1988); 67A C.J.S. Parent and Child §§ 16 through 19 (1978). The rights of natural parents to the care, custody, and control of their children will not be overturned unless and until the natural parents are determined to be unfit or incapable of providing for the best interests and welfare of the children. Mousseau. However, under appropriate circumstances, our supreme court has recognized that the rights of "nonparents" to the custody, care, and control of children can supersede those of the natural parent. See, Ex parte Berryhill, 410 So.2d 416 (Ala.Civ.App.1982).
If a parent is awarded custody of a child, grandparents and other "nonparents" are not necessarily entitled to visitation privileges. See, 67A C.J.S. Parent and Child § 41(c) (1978); cf., § 30-3-4, Code 1975 () and, Kewish v. Brothers, 279 Ala. 86, 181 So.2d 900 (1966) ().
The award of visitation privileges is a matter left to a trial court's discretion, guided by what will protect and enhance the best interests and welfare of the child. See, Jackson v. Jackson, 520 So.2d 530 (Ala.Civ.App.1988).
In former husband's petition he alleged only that the former wife "is in contempt of the Court for her willful violation of this Court's Order [awarding reasonable visitation] by refusing [to allow the exercise of the former husband's] visitation rights." No allegation or assertion was made by former husband which tended to show the mother as unfit or unsuited, nor that the best interests and welfare of the child were in jeopardy. Recognizing that "nicety of pleading" is to be disregarded in matters concerning the best interests and welfare of the child, our review of the record does not disclose any matter which raises, expressly or by...
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