Stilwell v. Stilwell

• Decision Date: 05 April 1978
• Citation: Stilwell v. Stilwell, 357 So.2d 355 (Ala. Civ. App. 1978)
• Parties: Billy G. STILWELL v. Opal STILWELL. Civ. 1310.
• Court: Alabama Court of Civil Appeals

Page 355

357 So.2d 355

Billy G. STILWELL v. Opal STILWELL.

Civ. 1310.

Court of Civil Appeals of Alabama.

April 5, 1978.

James T. Baxter, III, of Berry, Ables, Tatum, Little & Baxter, P. C., Huntsville, for appellant.

Glenn F. Manning, of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.

BRADLEY, Judge.

This is a divorce case.

Plaintiff, Opal Stilwell, filed suit for divorce from her husband, Billy G. Stilwell, in August 1976 in the Circuit Court of Madison County. The grounds for divorce were cruelty, incompatibility, and irretrievable breakdown of the marriage. The defendant husband answered by denying the allegations of the complaint and sought a divorce on the ground that his wife was an habitual user of alcohol.

After a hearing ore tenus, the trial court granted a divorce to the plaintiff on the grounds set out in her complaint; awarded the custody of two minor girls to the plaintiff; ordered defendant to pay to plaintiff $125 per month for the support of each child and $50 per month as periodic alimony; allowed defendant certain prescribed visitation privileges with his children; ordered defendant to convey his interest in the household furnishings to plaintiff (except certain enumerated items of personal property which were to be retained by defendant); directed the parties to convey their respective interests in two automobiles to each other; required defendant to convey his interest in the marital home to plaintiff; required defendant to maintain in force and effect certain listed insurance policies for the benefit of plaintiff and the children; ordered defendant to satisfy a second mortgage on the home; and ordered defendant to pay to plaintiff $2,400 for her attorneys' compensation. From this judgment defendant appeals.

The issues on appeal are: (1) did the trial court err in awarding the custody of the two nine year old girls to plaintiff; (2) were the visitation privileges accorded defendant inequitable; (3) did the court err in awarding a divorce to the wife on the ground of cruelty; and (4) was the award of alimony, child support and division of property excessive in view of defendant's income.

The evidence shows that the parties were married in 1962, separated in 1976 and divorced in 1977. During the marriage the husband worked at Redstone Arsenal. He is a security guard and now has a base salary of $10,532 per year. However, he supplements his income by working overtime and has engaged in this practice for the past several years. In 1973 defendant received $10,410.63; in 1974 $11,191.27; and in 1975 $12,531.71.

The plaintiff wife works parttime as a typist for a court reporter, earning about $250 to $300 per month.

The bulk of the evidence presented at trial was directed toward the fitness of the parties to be custodians of the two young girls; moreover, this evidence centered on the part alcohol played in the lives of both parties to this proceeding.

Several witnesses, including the children and the defendant, testified that the wife drank alcohol (mainly beer) quite frequently and on occasion would become intoxicated. The frequency of the instances in which the wife drank to excess was in dispute. On one hand, the husband stated that the wife's drinking had reached the point where it interfered with her household chores and rendered her incapable of looking after the children. Defendant even stated that plaintiff was a hazard to the welfare of the children in that when she was drinking she would smoke and would either pass out or go to sleep with a lighted cigarette in her hand thus creating the possibility of a serious fire. On the other hand, plaintiff's employer stated that she had been in the plaintiff's house at all hours of the day and night as well as having talked to the latter on the telephone during all hours and that she (the employer) had never seen or heard plaintiff when the latter was under the influence of alcohol. Plaintiff's employer further stated that plaintiff was a good housekeeper and was good to the children. Furthermore, she testified that it appeared to her that plaintiff loved the children and wanted to be a good mother. The children, however, stated that they wished to live with their father. The mother explained that the reason the children wanted to live with their father was because he had poisoned them against her. Plaintiff also testified that the father had tried to replace her in the children's affections and that he had told the children that they were not required to obey their mother.

In regard to his contention that the trial court incorrectly awarded custody of the children to his ex-wife, defendant argues that the court erred by placing the burden on him to prove that the wife was unfit.

At the beginning of the hearing the trial court said:

"THE COURT: Tommy Baxter, (attorney for defendant) the only way you are going to get custody is to prove the mother to be unfit. If you can do that the Court will give consideration to it, and without substantial testimony in that regard you lose. Now, do you have such testimony?

"THE COURT: . . . She is going to get the kids, I know that and both of you know that, unless he can prove that she is unfit. That is his burden. Why not let him seek to prove that at this time."

From this discourse it is quite obvious that the trial court considered the mother's unfitness to be decisive of the custody question.

To begin, the primary consideration in a child custody case is the best interests and welfare of the child. Rogers v. Rogers, Ala.Civ.App., 345 So.2d 1368 (1977). And, in deciding what is in the best interests of a child, a court is bound to consider the following principle of law:

"Ordinarily where a child is of such tender age as to require the care and attention that the mother is specially fitted to bestow, the mother rather than the father is the proper custodian unless for some reason she is unfit for the trust." Burleson v. Burleson, 269 Ala. 637, 114 So.2d 887 (1959).

In the case at bar the two young girls were nine years old. The supreme court has held that nine year old children fall within the "tender years" doctrine. McBride v. McBride, 268 Ala. 619, 109 So.2d 718 (1959).

However, defendant asserts that the above stated principle is inapplicable to this case since the children expressed a desire to live with him rather than with their mother. But we should add that the custody preferences of children are not controlling on the court, Patterson v. Patterson, Ala.Civ.App., 345 So.2d 1364 (1977), although such preferences are entitled to much weight. Rogers v. Rogers, supra.

The evidence of the relative fitness of the plaintiff and defendant to have custody of their two nine year old daughters is in sharp conflict and no good purpose would be served by rehashing their behavior, whether virtuous or blameworthy. Suffice it to say that unless we are convinced and we are not so convinced that the trial court's award of the children's custody to the plaintiff is plainly and palpably erroneous, we are bound to affirm. Accordingly, we affirm the court's award of the custody of the two minor children to the plaintiff wife.

Defendant's next contention is that his visitation privileges are inequitable.

In settling visitation privileges, the trial court is accorded wide latitude and each case will be decided on its own peculiar facts. Lipham v. Lipham, 50 Ala.App. 583, 281 So.2d 437 (1973).

In the present case defendant was given visitation two weekends out of each month; fourteen consecutive days in June, July and August of each year; and he and plaintiff are to alternate Thanksgiving and Christmas of each year. It is further provided in the decree that if visitation is not undertaken within the approximate time listed, such visitation period is forfeited.

Defendant complains that he works a swing shift and that he might not be able to pick the children up or return them as scheduled. The record does not convince us, as it obviously did not convince the trial court, that defendant could not make arrangements to have someone else pick up or return the children at the appointed times in the event that he was unable to do so. We find no error in that part of the court's decree which dealt with visitation.

Defendant's next objection to the trial court's decree concerns the award of a divorce on the ground of cruelty. He argues that there is no evidence in the record to support such a finding.

The trial court's decree divorcing the parties is based on three grounds, i. e. cruelty, incompatibility, and irretrievable breakdown of the marriage. And, there is ample evidence in the record to support the finding of incompatibility and irretrievable breakdown. Nonetheless, defendant argues that the decree should be reversed because one of the grounds, i. e. cruelty, on which the divorce was granted was unsupported by the evidence. Without deciding initially the validity of defendant's argument, we consider the alleged error to be within the ambit of the "harmless error" rule found in Rule 61 of the Alabama Rules of Civil Procedure. As pointed out, the evidence amply supports the granting of the divorce on the grounds of incompatibility or irretrievable breakdown of the marriage and, as a result, the parties are divorced regardless of whether there is evidence of cruelty. Hence, we can perceive of no substantial injury to defendant.

Nevertheless, we think the cruelty ground is supported by the evidence.

The plaintiff testified as follows:

"Q. Mrs. Stilwell, throughout the marriage and in particular beginning in 1972, and up until the time of the filing of your petition for divorce, until the time you were actually separated, were there was your marriage characterized by frequent arguments, frequent

"A. Screaming battles.

"Q. discussions?

"A. Yes.

"Q. Screaming battles, you would describe them as?

"A. Yes.

"Q. Will you tell the Court whether Mr. Stilwell was prone to use...