Thorne v. Thorne

• Decision Date: 30 March 1977
• Citation: Thorne v. Thorne, 344 So.2d 165 (Ala. Civ. App. 1977)
• Parties: Georgie THORNE v. Dennis F. THORNE. Civ. 977.
• Court: Alabama Court of Civil Appeals

Page 165

344 So.2d 165

Georgie THORNE v.Dennis F. THORNE.

Civ. 977.

Court of Civil Appeals of Alabama.

March 30, 1977.

George E. Trawick, Ariton, for appellant.

M. Dale Marsh of Cassady, Fuller & Marsh, Enterprise, for appellee.

BRADLEY, Judge.

This appeal is from a final decree of the Circuit Court of Coffee County, Alabama modifying a prior divorce decree by changing custody of two minor children from the mother to the father.

Georgie Thorne, the mother, and Dennis Thorne, the father, were divorced on the ground of incompatibility in July 1974 and the mother was awarded custody of the two minor children born of the marriage.The father was given reasonable visitation rights.In March 1975, on motion of the father, the Circuit Court of Coffee County entered an order modifying the divorce decree by precisely defining the times at which the father could have the children visit with him.In October 1975 the divorce decree was again modified in petition of the father by changing the specified periods of visitation.

The action now before the court was initiated on July 1, 1976 when the father once again filed a petition alleging that there had been conflicts and disputes between the parties during the father's exercise of his visitation rights 'which materially affect the welfare of the minor children in this cause and which are materially detrimental to the Defendant exercising his visitation rights.'The father specifically requested the court to 'enter such orders and decrees as are necessary to insure the Defendant his rights of visitation with the minor children without conflicts and disagreements,' and generally asked for 'such other, further, and different relief as the Court may deem proper under the circumstances.'

A hearing on the petition was held.Both parties, represented by counsel, appeared and testified.Testimony by the father and his present wife dealt solely with events which transpired between the parties when the father would arrive to pick up the children in order to exercise his visitation rights.

At the conclusion of the present Mrs. Thorne's testimony the following transpired:

'QUESTIONS ASKED BY THE COURT:

'Q.Do you feel that you and your present husband could look after these children if they were placed in your permanent care and custody here in Enterprise?

'A.I sure do, because I don't have any children.

'Q.Do you think that would end this conflict and be in the best interest of these children to be removed from the custody of Mrs. Thorne.

'A.I really don't know.

'THE COURT: That's all.'

The mother then presented her evidence through her own testimony and that of her parents, with whom she and the children live.This testimony covered not only the conflicts and misunderstandings which occurred over the father's exercise of his visitation rights but also touched upon the children's well-being and care while in her custody.The children were depicted as being loved and well cared for in every respect by both their mother and their grandparents.

At the conclusion of the hearing the circuit court entered a decree removing custody of the children from the mother to the father; allowing the mother the same visitation rights as granted the father in the October 1975 decree; and requiring the mother to post a $2,000 bond prior to the exercise of her visitation periods.The mother appeals.

Two questions are presented for decision.The first is whether the trial court's modification of the prior divorce decree by changing custody of the children at the conclusion of a hearing to determine modification of the father's visitation rights denied due process to the mother in that she was not given notice that the issue of custody was to be decided.The second is whether the trial court abused its discretion by changing custody from the mother to the father where there was no showing of changed circumstances to justify the change.We hold the trial court erred in both respects and reverse.

It is apparent from the petition filed by the father and his testimony that the father's sole reason for going before the Coffee County Circuit Court was to obtain a further clarification of his visitation rights under the divorce decree, specifically that he be allowed to pick up the children at some place other than the mother's home, in the hope that the arguments and fights which had occurred in the past would thereby cease.He did not ask for custody, did not question the mother's fitness for custody, or adduce any evidence that the children would be better off in his custody.The first indication to either party that custody of the children might be an issue was when, at the close of the father's evidence, the trial judge asked the father's present wife whether she thought it would be in the best interest of the children to be removed from the mother's custody.The mother contends this was not adequate notice to her of the custody issue and therefore she was denied due process of law.We agree.

The question is not whether a trial judge, sitting in equity to determine rights as between parents which affect the welfare of their minor children, can grant relief for which neither party asked, but rather whether the judge can grant different relief without giving the parents adequate notice and an opportunity to be heard.

An equity court has wide judicial discretion in proceedings involving the welfare of children.In Hayes v. Hayes, 192 Ala. 280, 68 So. 351(1915), it was said that when an equity court has acquired jurisdiction of a child as to the child's custody and control, the child becomes a ward of the court and the parties to the suit are of secondary importance.The court may make any order or decree regarding the welfare of the child as its sound discretion dictates.Hayes was followed in Ex parte Bates, 247 Ala. 391, 24 So.2d 421(1945).

In Ex parte White, 245 Ala. 212, 16 So.2d 500(1944), the supreme court quoted Judge Cardozo's discussion of an equity court's jurisdiction and power in child custody proceedings brought independent of a divorce action in Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624(1925):

". . . It is not a remedy by suit.It is a remedy by petition. . . .The chancellor in exercising his jurisdiction upon petition does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against anyone.He acts as parens patriae to do what is best for the interest of the child. . . .He is not adjudicating a controversy between adversary parties, to compose their private differences.He is not determining rights 'as between a parent and a child,' or as between one parent and another. . . .Equity does not concern itself with such disputes in their relation to the disputants.Its concern is for the child."245 Ala. at 214, 16 So.2d at 502.

In Stephens v. Stephens, 253 Ala. 315, 45 So.2d 153(1950), a mother had petitioned the court for custody of her children during the pendency of her appeal from a decree divorcing her from the children's father.The supreme court indicated that the petition for custody and the appeal from the divorce decree were independent actions, neither one affecting the other.It then said:

'. . . The question of the custody of infant children is not an adversary proceeding between parents in the eyes of the law, but is a matter within the peculiar discretion of the chancellor as to the welfare of wards of the court.He acts as Parens patriae and any matter affecting their rights or interests are within his peculiar jurisdiction, and it is immaterial whether that jurisdiction is invoked by an independent suit or by petition in the same cause.Any pleading which shows upon its face that the welfare of an infant requires an order with respect to its custody or support is sufficient to that end.'253 Ala. at 319--20, 45 So.2d at 157.

Ex parte White, supra, and the Stephens case were both cited with approval by this court in Leigh v. Aiken, 54 Ala.App. 620, 311 So.2d 444(1975).However, while recognizing the broad judicial discretion of an equity court in its role as protector of the welfare of minor children within its jurisdiction, this court also stated the equity court's discretion is not unlimited or arbitrary, but rather subject to the limitation that the court may not act contrary to the best interest of the child.

There is another limitation placed on an equity court in exercising its discretion in child custody disputes between parents, and that is the right of the parents to due process of law in the proceedings.Danford v. Dupree, 272 Ala. 517, 132 So.2d 734(1961).There the trial court prejudged a mother's petition to regain custody of her child before the mother had been given an opportunity to present evidence in support of her petition, thereby denying the mother her opportunity to be heard.The supreme court said:

'In dealing with such a delicate and difficult question--the welfare of a minor child--due process of law in legal proceedings should be observed.These settled courses of procedure, as established by our law, include due notice, a hearing or opportunity to be heard before a court of competent jurisdiction.Tillman v. Walters, 214 Ala. 71, 108 So. 62.'272 Ala. at 520, 132 So.2d at 735.

Dictum in an earlier case also states that a parent's right to the custody of his or her minor child cannot be finally terminated unless the parent has been given due notice and an opportunity to be heard.Ex parte White, supra.There the supreme court upheld a temporary award of custody to the father which had been granted without notice to the mother, but added the provisional change in custody by a summary proceeding is permissible only if an adequate remedy is available by which the parent may afterward have his or her rights presented to a court of competent jurisdiction.

The citation to Tillman v. Walters, 214 Ala. 71, 108 So. 62(1925) in Danford v. Dupree, supr...