T.K.T. v. F.P.T.

• Decision Date: 06 February 1998
• Citation: 716 So.2d 1235
• Parties: T.K.T. v. F.P.T. 2960939.
• Court: Alabama Court of Civil Appeals

Page 1235

716 So.2d 1235

T.K.T. v. F.P.T.

2960939.

Court of Civil Appeals of Alabama.

Feb. 6, 1998.

Rehearing Denied March 13, 1998.

Certiorari Denied June 19, 1998

Alabama Supreme Court 1971137.

Janice C. Hart and Laura Alfano of Hart & Alfano, Warrior, for appellant.

Robert P. Bynon, Jr., of Bynon & Associates, Birmingham, for appellee.

HOLMES, Retired Appellate Judge.

This is a divorce case.

The parties in this case married in August 1988 and separated in September 1994. In March 1995 both parties filed complaints for divorce, alleging incompatibility and requesting, among other things, custody of the minor children, who were ages 2 and 4 years.

Following an ore tenus hearing, the trial court entered a judgment on February 26, 1997, divorcing the parties, dividing their marital assets, and providing, in part, that the wife would have custody of the children and that the husband would have liberal visitation rights. The judgment also provided that the husband would pay $1,070 per month as child support and $15,000 toward the wife's attorney fees. The husband filed a post-judgment motion, which the trial court denied.

The husband appeals, raising several issues.

Child Custody

The husband first contends that the trial court erred in awarding the wife custody of the minor children. In Williams v. Williams, 602 So.2d 425 (Ala.Civ.App.1992) (citations omitted), this court stated the following well-settled law regarding an initial award of custody:

"In an initial custody determination the parties stand on equal footing without a favorable presumption to either. In determining which parent should have custody, the paramount consideration is the health, safety, and well-being of the child. An award of child custody is a matter within the discretion of the trial court.

"This court presumes that the trial court correctly applied its discretionary authority to adjudge the child's best interests. The presumption arises because the trial court is in the best position to see and hear the witnesses. It is our duty to affirm the decree if it is supported by credible evidence."

Suffice it to say, we have carefully and thoroughly reviewed the voluminous record and deem it unnecessary to set forth in detail the full facts of this case. In applying the above standard of law, we conclude that the trial court did not err in awarding custody of the minor children to the wife.

As noted previously, the parties separated in September 1994, after the husband voluntarily left the marital home. During the pendency of this case, the husband moved to Atlanta, where he presently resides with his paramour. The wife has had custody of the children since the husband left, and she has willingly maintained the role of primary caretaker.

At trial both parties testified regarding their role in rearing the older child. A careful and thorough review of the testimony reveals that both parties love their children and have actively participated in their children's lives. Further, the older child testified at trial, and his testimony indicates that he is happy and well-adjusted and has no preference regarding his living arrangements.

Thus, while the trial court could have found that both parties were fit and/or capable of caring for the children, it, nevertheless, determined that the best interests of the children would be with the wife.

On appeal, the husband would have this court determine that the trial court based its determination of custody on the sole fact that the husband is an admitted homosexual. We decline to so find. It is well established that the trial court considers numerous factors when determining the best interests of a child. Kent v. Green, 701 So.2d 4 (Ala.Civ.App.1996). Some of those factors include, but are not limited to, the following:

"the sex and age of the child; the characteristics and needs of the child, including his or her emotional, social, moral, material and educational needs; the respective home environments offered by each parent; the characteristics of those seeking custody, including age, character, stability, and mental and physical health; the capacity of each party to provide for the emotional, social, moral, material, and educational needs of the child; the interpersonal relationship between the child and each parent; the effect on the child of disrupting or continuing an existing custodial status; the child's preference, if the child is of sufficient age and maturity; the recommendation of any expert; and any other relevant matter the evidence may disclose."

Kent, 701 So.2d at 6. And, "although it may not be a ground for denying custody to a parent, adultery by a parent may enter a court's decision concerning custody." Smith v. Smith, 599 So.2d 1182, 1186 (Ala.Civ.App.1991).

Based on the extensive testimony presented in this case, it is obvious that the trial court considered numerous factors in determining the best interests of the children. For this reason, we cannot fault the trial court. To do so would be to substitute our judgment for that of the trial court. This, the law does not permit. Grubbs v. Crosson, 634 So.2d 593 (Ala.Civ.App.1994).

Visitation

As noted previously, the trial court granted the husband liberal visitation rights, subject to certain restrictions. Specifically, the trial court noted the following regarding the husband's visitation:

"The [husband] shall exercise his said visitation with the minor children in the state of Alabama (this is due to his willful contempt and violation of this court's previous orders related to his visitation). In addition, the [husband] shall not exercise his visitation in the presence of anyone with whom he has a sexual relationship, to whom he is not married."

The husband contends that the trial court abused its discretion in restricting his visitation rights. We find no such abuse. The law regarding visitation is well settled:

"The trial court has broad discretion in determining the visitation rights of a noncustodial parent. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987). 'Once an ore tenus hearing is held and the visitation rights are determined, the [judgment] is presumed correct. Further, absent a finding that the [judgment] is unsupported by any credible evidence and is plainly and palpably wrong, we will affirm.' Andrews, supra, at 513 (Citations omitted.) The primary consideration in establishing visitation rights for a noncustodial parent must be the best interests and welfare of the children. I.L. v. L.D.L., Jr., 604 So.2d 425 (Ala.Civ.App.1992)."

Anonymous v. Anonymous, 620 So.2d 43, 44-45 (Ala.Civ.App.1993).

The record reveals that during the pendency of this case, the trial court entered several orders providing that neither party could transport the children outside the state of Alabama without prior approval of the court. The orders further provided that the children were not allowed in the presence of J.H., the husband's paramour. At trial, the husband admitted that on several occasions he had violated the trial court's order by transporting the children to his home in Atlanta, where his paramour was present. At the close of the evidence, the trial court entered an order, holding the husband in criminal contempt for his violation of the previous orders. The trial court also held the husband in civil contempt for his failure to pay child support.

Considering the husband's admitted violation of the trial court's previous orders we conclude that the trial court did not err in restricting his visitation rights. We would emphasize at this point, however, that matters involving child custody and visitation are never res judicata; this is true, of course, because the trial court retains jurisdiction over these matters in the event of circumstances warranting a subsequent modification. Anonymous, supra.

Child Support

The trial court, in its judgment, ordered the husband to pay $1,070 per month as child support. The trial court noted that this amount was not based on the child support guidelines established by Rule 32, Ala. R. Jud. Admin. Instead, the trial court noted that this amount reflected the trial court's finding that the husband earns $3,750 per month, rather than the amount reflected on his CS-41...