Thompson v. Thompson

Decision Date05 November 1975
Citation326 So.2d 124,57 Ala.App. 57
PartiesBill THOMPSON v. Veda Dawn THOMPSON. Civ. 484.
CourtAlabama Court of Civil Appeals

Love, Love & Lawrence, Talladega, for appellant.

McDuffie & Holcombe, Tuscaloosa, for appellee.

BRADLEY, Judge.

This is a child custody case. Appellant, the father of William Mark Thompson, age six, appeals from an order refusing to remove the child from the custody of his mother, the appellee. The order of the trial court is affirmed.

Appellant and appellee were married on October 7, 1968, and divorced by decree of the Circuit Court of Tuscaloosa County on January 26, 1970. Custody of Mark, as the boy is known, the only child of the marriage, was awarded to appellee with visitation privileges reserved to appellant, and child support was set at $40 per month.

Appellant filed a previous petition to modify the child custody arrangement on April 19, 1972, alleging interference with his visitation privileges. However, at the time the present petition for modification was filed, the only substantial change ordered by the court had been an increase in child support to $100 monthly.

On August 17, 1973 appellant filed the petition before us now in Tuscaloosa County Circuit Court, alleging that a substantial change in circumstances had occurred. The petition sought to have the permanent custody of Mark awarded to appellant, and also asked for an order restraining appellee from taking Mark out of Alabama during the pendency of the hearing. The requested restraining order was issued on August 17, 1973, and hearing set for November 14, 1973.

The hearing commenced on that date, but was not completed then. For various reasons it was postponed several times. Numerous appearances by counsel were made and several motions filed during this interval. It is not necessary to set forth a statement of all those proceedings.

On October 30, 1974 the concluding session of the hearing on this petition commenced. The hearing lasted for four days, and the trial court heard lengthy testimony ore tenus. The transcript of this hearing is over four hundred pages in length, and is supplemented by exhibits and the text of several depositions.

On November 9, 1974 the trial court entred a decree expanding appellant's visitation rights, lowering child support to $75 per month, but denying the requested modification in custody. It is this latter portion of the judgment which is appealed.

The evidence discloses that, at the time of the hearing on the matter appealed from, appellant, a lawyer, had remarried and was living with his second wife in Talladega. Appellee has remarried twice, the second marriage resulting in a divorce, and currently lives with Mark and her third husband, a drapery salesman, in Orlando, Florida. The two parties and their present spouses all have full-time jobs. Mark is enrolled in a pre-school kindergarten program where he spends half of each weekday, and in a nursery school where he spends the remainder of the day while his mother is at her job.

It is undisputed that appellee and her husband can provide for Mark financially, especially when the child support payments are taken into account. The home in Orlando has several bedrooms, den, two bathrooms, and other rooms. Appellee's husband does use some of the space in the house, however, to store supplies and machinery used in his business. Mark has a bicycle, wagon, swing set and other toys.

The financial ability of appellant is comparable, if not better. He has a comfortable home, a growing practice, and has set up a testamentary trust fund for Mark. He pays for Mark to fly up from Orlando by airplane on visitations, and takes Mark horseback riding.

The point of contention raised by the petition is that appellee is unsuited psychologically and morally to have custody of the boy. Evidence presented by appellant tended to portray appellee as engaging in sexual misconduct; administering punishment to Mark irregularly and sadistically Appellant also produced the deposition of Dr. Robert Estock, a child- psychiatrist who had examined Mark. Dr. Estock reported that Mark had an emotional disturbance of less than psychotic proportions, probably caused by the instability in his life due to the breakup of his parents' marriage and the later custody and visitation situation. Dr. Estock also said that Mark had a positive relationship with his father, that it would be stressful for Mark to be removed to a place where his father could not visit him, but that there was insufficient observation of Mark's relationship with appellee to justify an opinion that Mark should be placed in appellant's custody.

failing to provide Mark with medical care when needed; keeping an untidy apartment for the boy to live in; inadequately feeding, clothing, and bathing him; unable to hold a job; untruthful; argumentative with landlords, tradespeople, and proprietors of nursery schools; callous toward Mark and appellant; and irreligious.

Additionally, appellant brought forth much testimony from character witnesses to the effect that he and his present wife are capable of raising Mark successfully and enjoy an excellent reputation in Talladega.

Appellee and her husband disputed through oral testimony and documentary exhibits the implications raised by appellant's evidence. They presented medical records of Dr. Peter Trice, including a recent record of medical examination showing Mark to be in good health; appellee testified that Mark's pre-school kindergarten was an experimental enriched program very beneficial to its pupils; the charges of sexual misconduct were denied. Further, on cross-examination the witness whom appellant had called to testify that appellee's apartment was unclean admitted to having some hostility toward appellee because of a landlord-tenant dispute, and that the inspection of the premises had not been made until appellee had moved out and a break-in by unknown persons had occurred.

On the question of physical punishment, appellee denied using arbitrary or excessive corporal punishment. Appellee's husband testified that Mark was disciplined by moderate spanking with a belt, but that this occurred less often than twice a month, and only when Mark lied, was insubordinate, or was cruel toward animals.

Appellee's husband also testified that, although the family did not attend church or send Mark to Sunday School, the members of the family did believe in a supreme being, and that Mark received spiritual training at nursery school and in the home.

Appellee also testified that appellant was unfit to raise Mark due to emotional immaturity. She testified that he frequently threatened physical violence against her, and had committed acts of violence on her in the past. She also related an incident in which appellant had lost his composure in public while visiting her after the divorce. There are also some photographic exhibits in the record which appellee claims suggest that appellant has engaged in sexual misconduct.

It is unnecessary to go into any of this evidence in detail. The recitation above is sufficient to show the course the hearing took, and the types of proof the respective parties were relying on.

Appellant's arguments on appeal are apparently intended to support the conclusion that the trial court, in denying the modification sought, improperly invoked the presumption which favors awarding the custody of a child of tender years to its natural mother.

First, appellant's assignment of error eight asserts that the 'tender years' presumption violates his rights to equal protection under the law. We are not persuaded to accept this proposition.

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), a case not mentioned in appellant's brief, is the leading authority in this area of constitutional law. In that case the United States Supreme Court invalidated an Illinois statute which omitted unwed fathers from the definition of 'parent' and thereby presumed them unfit to raise children. Despite a seemingly contrary result, Stanley provides grounds for...

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6 cases
  • Ex parte Devine
    • United States
    • Alabama Supreme Court
    • 27 Marzo 1981
    ...such children. This presumption, while perhaps weaker now than in the past, remains quite viable today. See e. g. Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124 (1975), cert. den. 295 Ala. 425, 326 So.2d 129 (1976); Taylor v. Taylor, 372 So.2d 337 (Ala.Civ.App.1979), cert. den. 372 So.......
  • Wambles v. Coppage
    • United States
    • Alabama Court of Civil Appeals
    • 16 Junio 1976
    ...supra. Such a result is a necessary consequence of the natural father's rights to due process and equal protection, Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124, cert. den. 295 Ala. ---, 326 So.2d 129. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551. As previousl......
  • Taylor v. Taylor
    • United States
    • Alabama Court of Civil Appeals
    • 11 Abril 1979
    ...of that doctrine must fail. The policy supporting the tender years presumption was reiterated by this court in Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124 (1975), Cert. den. 295 Ala. 425, 326 So.2d 129 (1976), where, as here, the appellant attacked that presumption on equal protecti......
  • Devine v. Devine
    • United States
    • Alabama Court of Civil Appeals
    • 5 Marzo 1980
    ...classification. We have held it not to violate the father's constitutional right to equal protection of the law. Thompson v. Thompson, 57 Ala.App. 57, 60, 326 So.2d 124 (1975); Taylor v. Taylor, 372 So.2d 337 (Ala.Civ.App.1979), cert. denied, 372 So.2d 341 The husband contends that our rece......
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