Snellings v. Snellings

• Decision Date: 25 May 1961
• Docket Number: 4 Div. 33
• Parties: Lorraine SNELLINGS v. J. Frank SNELLINGS, Jr.
• Court: Alabama Supreme Court

Page 363

130 So.2d 363

272 Ala. 254

Lorraine SNELLINGS v. J. Frank SNELLINGS, Jr.

4 Div. 33.

Supreme Court of Alabama.

May 25, 1961.

Chas. H. McCann, Seale, for appellant.

Roy H. Phillips, Phenix City, for appellee.

GOODWYN, Justice.

This is an appeal by the mother from a decree of the circuit court of Russell County, in equity, modifying a divorce decree with respect to the right of the father to have the parties' two minor sons, 15 and 12 years of age, visit with him. In this proceeding the wife filed a petition to have the father, appellee here, adjudged in contempt of court for failure to make the support payments called for by the divorce decree. After the father made the past due payments the trial court held that he had purged himself of the contempt charge. No question as to that ruling is presented on this appeal.

The record is filled with considerable testimony which appears to have little bearing on the real issues before us, which are: (1) Whether the evidence shows such a change in conditions since the date of the divorce decree which would authorize a modification of the visitation rights given to the father, and (2) whether the court erred in providing in the modified decree that the weekly support payments shall terminate and be cancelled 'during such period that the child fails, refuses or is prevented from visiting with his father, J. Frank Snellings, Jr., in accord with the terms of this decree.'

(1).

The original decree of divorce awarded custody of the two boys to the mother 'with the right to the father to have said children visit and be with him at the home of his mother, Mrs. Maude I. Snellings, from 5:00 P.M. on Friday until 6:00 P.M. on Sunday every other week beginning on the 10th day of April 1959.' The decree further provided that the father 'is to have the children visit and be with him at the home of his mother during the first six weeks following the close of school in each and every succeeding year, unless the parties otherwise agree to change this period.'

The modified decree continues to award custody to the mother but, with respect to the father's visitation rights, gives him the right 'to have said children visit and be with him at his home or such other place as he may designate, from 5:00 P.M. on Friday until 6:00 P.M. on Sunday of every other week, beginning on the 9th day of January, 1960,' and also 'to have the children visit and be with him at his home or such other place as he may designate during the first six weeks following the close of school in each and every succeeding year, unless the parties otherwise agree to change this period.'

At the time of the original divorce decree (April 3, 1959) the father was living with his mother in Phenix City. Apparently, this was the reason for the provision in the original decree providing for the father's visitation with the children at his mother's home. About June 11, 1959, the father married again, his new wife having three children. After his remarriage he moved to the house where his new wife was living. It was then that the difficulty about the boys visiting with their father came to a head. There seems to be no doubt that the boys do not want to visit their father at the home of his new wife. The position taken by the boys' mother, the appellant here, is that the trial court did not give due consideration to the boys' wishes and also that the living facilities at the father's home are not adequate for taking care of the boys particularly since the father's three stepchildren (two boys and a girl) are also living there.

We think the change in the father's residence is a sufficient change in conditions to justify the modification of the original decree, if, of course, such change is in the best interest of the children. As to this, we note that both the original and the modification proceedings were heard by the same trial judge. In view of the favorable presumption attending his findings from the evidence taken ore tenus, we are not prepared to say that he erred to a reversal in decreeing the change in the father's visitation rights. In other words, we cannot say that his decision is palpably wrong. While the wishes of children of sufficient judgment are factors to be considered in awarding custody, they are not controlling since the governing consideration in every case is their best interest and welfare and they may not be the best judges as to that. McGregor v. McGregor, 257 Ala. 232, 236, 58 So.2d 457; Weems v. Weems, 255 Ala. 210, 214, 50 So.2d 428; Hill v. Gay, 252 Ala. 61, 62, 39 So.2d 384; Sparks v. Sparks, 249 Ala. 352, 353, 31 So.2d 313; Chandler v. Whatley, 238 Ala. 206, 211, 189 So. 751; Wright v. Price, 226 Ala. 591, 593, 147 So. 886; Garrett v. Mahaley, 199 Ala. 606, 608-609, 75 So. 10; Neville v. Reed, 134 Ala. 317, 320, 32 So. 659, 92 Am.St.Rep. 35.

(2).

The original divorce decree also provided that the father pay $45 per week to the mother for the support of the two children except during the six weeks period in which the father 'exercises custody of the children in accord with the provisions of this decree.'

With respect to the weekly support payments, the modified decree provides for payment by the father of 'the sum of $22.50 per week for the support of each of the minor children' and continues his exemption from making the support payments during the six weeks he has custody. The decree of modification also contains this provision:

'In the event the said children, or either of them, fail or refuse, or are prohibited from complying with the terms of paragraph Three of this Decree, as Modified, then, and in that event, the support as to the children or to the particular child failing or being prevented from complying with this Decree, shall terminate and be cancelled during such period that the child fails, refuses or is prevented from visiting with his father, J. Frank Snellings, Jr., in accordance with the terms of this Decree.'

It seems apparent that the action of the trial court, in providing for cancellation of the support payments upon refusal or failure of the boys to visit with their father, was for the purpose of compelling obedience to the decree providing for such visitation. From the evidence, the trial court would be justified in concluding that the boys' visits with their father will be made reluctantly.

Our specific concern here is not with the father's obligation to furnish necessities to the two boys but with an...