Taylor v. Taylor

Decision Date11 April 1979
Citation372 So.2d 337
PartiesNeil TAYLOR, Jr. v. Shirley TAYLOR. Civ. 1675-X.
CourtAlabama Court of Civil Appeals

Neil Taylor, Jr., pro se.

Robert L. Gonce of O'Bannon & Gonce, Florence, for appellee.

BRADLEY, Judge.

Former husband appeals and former wife cross-appeals from a decree by the Circuit Court of Franklin County which denied the husband's petition for custody of two minor children and reduced child support payments from $450 per month to $270 per month. The husband contends on appeal that the so-called "tender years doctrine" is unconstitutional. The wife contends on appeal that the husband failed to show a material change of circumstances sufficient to warrant the reduction of child support payments. We affirm that portion of the decree which denied the requested change of custody and we reverse that portion of the decree which reduced the amount of the monthly child support payments.

After an eight year marriage the parties to this appeal were divorced by a final decree dated June 27, 1977. Their marriage produced two sons, Haffred Neil Taylor, III, born July 5, 1971, and Christopher Eric Taylor, born December 26, 1974. The divorce decree awarded custody of these sons to the mother and ordered the father to pay the sum of $450 per month child support. No appeal from this decree was taken by either party.

In December 1977 the father (who is an attorney) filed a petition to modify the divorce decree, seeking a reduction of the child support payments. The father's petition alleged as changed circumstances that he was insolvent and no longer able to make the required payments. The following month he amended his petition to include a request that he be granted custody of the two minor children.

After an ore tenus hearing in May 1978, the trial court entered a decree dated May 12, 1978 reducing the monthly amount of child support from $450 to $270. The father's request for custody was denied. His motion for a new trial was never ruled on by the trial court.

The father appeals from that portion of the trial court's decree which denied his request for custody. He contends that there exists no legally sufficient basis for the presumption traditionally entertained by the courts in Alabama that, all other things being equal, the interests of a child of tender years of either sex would be best served by having his or her custody awarded to the mother. The father argues that this "tender years doctrine" is impermissible under the equal protection and due process clauses of both the state and federal constitutions; and that the courts of this state should adopt as a substitute for that doctrine a sex-neutral rule of law designed to insure that custody of minor children is awarded to the more fit parent, without regard to whether that parent is the mother or father.

On the other hand the mother argues that while the constitutionality of the tender years doctrine may have been an issue in the original divorce/custody proceeding, it is not an issue on the father's petition to modify. The mother contends that the issues to be decided on this appeal are: (1) whether the trial court abused its discretion in concluding that the father had failed to prove a material change of circumstances sufficient to warrant changing custody of the children; and (2) whether the trial court erred in reducing the amount of child support payments. She asserts that the trial court correctly resolved the custody issue but erroneously allowed a reduction of child support payments.

Our review of this case is predicated on several well-established principles. The trial court is vested with great discretion in making an award of child custody and setting the amount of child support and will not be reversed except for palpable abuse. Hawkins v. Hawkins, Ala.Civ.App., 346 So.2d 967 (1977); Stilwell v. Stilwell, Ala.Civ.App., 357 So.2d 355 (1978); Travis v. Travis, Ala.Civ.App., 345 So.2d 321 (1977).

Where a judgment or decree is entered by the trial court after hearing the testimony ore tenus, such judgment or decree is presumed correct and will be reversed only if, after consideration of the evidence and all reasonable inferences to be drawn therefrom, the judgment or decree is found to be plainly and palpably wrong. Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342 (1973).

The modification of a decree awarding custody of a child must be based upon allegation and proof of a material change of circumstances affecting the best interests of the child since the last decree. The proponent of the change in custody has the burden of proving the material change in circumstances. McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316 (1977).

We think the trial court's conclusion regarding the custody of the children is supported by the evidence presented at the hearing. The father contended below that the mother was not properly caring for the children and that the children were suffering from numerous health problems such as ear infections, impetigo, weight loss, nausea, etc.; and that the mother had failed to follow doctors' instructions regarding corrective measures prescribed to correct curvature of the bone in the lower legs of both children. However, the testimony of the owner of the day-care center attended by Chris, and by Neil, III when he is not in school, indicates that the children are normal, well-adjusted, happy, intelligent, well-dressed, clean, well-cared for, and have no unusual health problems. The testimony of the mother indicates that she provides the children with a proper home in a nice residential area, at least two meals a day at home, good clothes, and proper medical care. Her testimony further indicated that Neil, III is making good grades in school, and that she has discussed his progress with Neil, III's teacher on several occasions. She stated that she had removed the twister cables from Christopher's legs on the advice of the physician treating the child.

Under these circumstances and the other evidence presented, we cannot agree that the trial court erred in finding no change of circumstances sufficient to warrant a change of custody.

Moreover, from the record there appears serious doubt as to whether the "tender years doctrine" (of which the father complains) formed any part of the basis for the trial court's denial of the requested change of custody. To support his request for reduction of the child support payments, the father pleaded and presented substantial evidence (discussed further herein) tending to prove that he was "insolvent." Thus, the father's argument reduces to a contention that the trial court erred by failing to award custody of two minor children to a party who simultaneously contended both that he could provide for the children, and that he was presently unable to provide for himself. We cannot agree that the trial court erred in refusing to accept these contradictory assertions.

Even if it is assumed that the tender years doctrine...

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2 cases
  • Opinion by the Clerk
    • United States
    • Alabama Supreme Court
    • March 12, 1980
    ...or judgment to modify a final decree or judgment is reviewed by appeal. Rule 4, Alabama Rules of Appellate Procedure. See Taylor v. Taylor, Ala.Civ.App., 372 So.2d 337. Contempt proceedings, of the kind of which inquiry was made, are not reviewable by appeal, but by certiorari, if the conte......
  • Ex parte Page
    • United States
    • Alabama Supreme Court
    • June 29, 1979

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