Wilson v. Wilson
| Decision Date | 21 October 1981 |
| Citation | 408 So.2d 114 |
| Parties | Frank M. WILSON v. Virginia H. WILSON. Civ. 2764. |
| Court | Alabama Court of Civil Appeals |
W. L. Chenault of Chenault, Chenault & Hammond, Decatur, for appellant.
Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellee.
This is a child custody case.
On June 26, 1980 the parties to this suit, Virginia H. Wilson, appellee, and Frank M. Wilson, appellant, obtained a divorce from the Morgan County Circuit Court. The divorce decree provided for a division of property between the parties, and granted permanent care, custody and control of the parties' three minor children to the mother. The father was required to pay the sum of $270.00 every other week as child support, and was granted visitation privileges.
On November 4, 1980 the father filed a motion to modify the prior divorce decree, alleging that the parties' fifteen year old daughter, Cynthia, had changed her residence to the residence of the father of her own volition. The petition requested the court to allow for Cynthia's permanent change of residence, and to transfer custody of the two minor sons from the mother to the father. The court entered a judgment on the motion, effective April 21, 1981, denying the father's petition for modification on the ground that there was no material change in circumstances to justify such a modification, and finding the father in contempt for failure to pay child support and for harassing and threatening the mother. The decree also awarded the mother's attorney a fee of $1,000.00.
The father filed a notice of appeal on April 21, 1981, and at the same time filed an application to fix a supersedeas bond. The bond was fixed in the amount of $7,500.00. On that same date the judge withdrew the decree fixing the bond, and entered a substitute decree, finding that:
(T)he judgment with reference to the custody, visitation and support of children is not subject to being superseded pending appeal. (Citation omitted.) The Court is also of the opinion that the provisions of the judgment relative to the personal belongings of the child, Cynthia Lynn Wilson, communications between the parties, and award of attorney's fees are so closely interwoven with child custody, child support, and the best interest of the children, that there is no authority for superseding those portions of said judgment.
A supersedeas bond was allowed for that portion of the decree concerning the division of household furnishings. The father thereafter filed an application for a stay of judgment, which was also denied. The father appeals.
The appeal raises three issues to be decided by this court: (1) whether the trial court erred in refusing to admit evidence of the wife's pre-divorce misconduct; (2) whether the trial court's decree is contrary to the best interests of the children; and (3) whether the trial court erred in holding that an award of attorney's fees could not be superseded on appeal.
Appellant's first contention is that the trial court erred in refusing to hear evidence concerning the wife's predivorce misconduct. Appellant sought unsuccessfully to introduce testimony at trial of the mother's immoral conduct prior to the divorce as a ground on which to justify modification of the custody decree. Although facts disclosed to the court and considered by it in fashioning the original custody decree cannot be "rehashed" in a subsequent modification proceeding, facts existing at the time of the original divorce decree but not disclosed at that time may be considered by the court in a subsequent modification proceeding, even though these facts do not...
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Adams v. Adams
...by the trial court in a modification hearing.'" Blume v. Durrett, 703 So.2d 986, 988 (Ala.Civ. App.1997) (quoting Wilson v. Wilson, 408 So.2d 114, 116 (Ala.Civ.App.1981)). The parties' pleadings state that the divorce judgment incorporated a settlement agreement. The mother's testimony indi......
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Wetch v. Wetch
...to consider pre-divorce conduct on the change-of-custody issue. Handley v. Taylor, 638 So.2d 8 (Ala.Civ.App.1994); Wilson v. Wilson, 408 So.2d 114, 116 (Ala.Civ.App.1981), cert. denied, Ex Parte Wilson, 408 So.2d 117 (1982); Randolph v. Dean, 27 Ill.App.3d 913, 327 N.E.2d 473, 475 (1975); s......
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Blume v. Durrett
...that are disclosed to the court in the original custody determination cannot be reexamined in a later modification. Wilson v. Wilson, 408 So.2d 114 (Ala.Civ.App.1981), cert. denied, 408 So.2d 117 (Ala.1982). However, facts not disclosed at the time of the original divorce proceeding should ......
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Haynes v. Haynes
...even though these facts do not relate to a change of circumstances subsequent to the original divorce [judgment].” Wilson v. Wilson, 408 So.2d 114, 116 (Ala.Civ.App.1981). The trial court expressly stated that it was aware of the precedent allowing it to consider the parties' predivorce con......