Opinion
1 Div. 869.
November 17, 1960.
Appeal from the Circuit Court, Mobile County, Herndon Inge, Jr., J.
Leon Duke, Mobile, for appellant.
Evidence of actual violence by husband on wife, attended with danger to her life or health authorize divorce on grounds of cruelty. Williams v. Williams, 239 Ala. 162, 194 So. 507; Puckett v. Puckett, 240 Ala. 607, 200 So. 420. It is presumed that a child of tender years will fare better in mother's care even though she may not be free of fault in the matter of separation. The unfitness which deprives the parent of the right to custody of a child must be positive and not merely comparative or speculative and must be shown by clear and satisfactory proof. Anderson v. Anderson, 165 Ala. 181, 51 So. 619; McLellan v. McLellan, 220 Ala. 376, 125 So. 225; Chandler v. Whatley, 238 Ala. 206, 189 So. 751; George v. George, 255 Ala. 190, 50 So.2d 744.
Moody Higgins, Mobile, for appellee.
Where testimony is taken ore tenus before trial court its findings of fact are to be accorded equal authority to that of a verdict of a jury. Rudicell v. Rudicell, 262 Ala. 41, 77 So.2d 339; Hammon v. Hammon, 254 Ala. 287, 48 So.2d 202; LeMay v. LeMay, 205 Ala. 694, 89 So. 49. Burden of proof is upon party to marriage seeking divorce on ground of cruelty to establish that party against whom divorce is sought committed acts of cruelty of such a nature as were attended with danger to life and health, or that from the conduct of such party complaining had reasonable grounds to feel that they were about to suffer such injury. Ussery v. Ussery, 259 Ala. 194, 66 So.2d 182; Morrison v. Morrison, 165 Ala. 191, 51 So. 743; Apperson v. Apperson, 217 Ala. 157, 115 So. 229; Pitchford v. Pitchford, 222 Ala. 612, 133 So. 718. The paramount consideration in determining who shall have custody of a child in a divorce action is the welfare of the child. McBride v. McBride, 268 Ala. 619, 109 So.2d 718; Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561; Gardiner v. Willis, 258 Ala. 647, 64 So.2d 609; Piner v. Piner, 255 Ala. 104, 50 So.2d 269.
This is an appeal from a decree of the Circuit Court of Mobile County, in equity, denying complainant's bill for divorce, a vinculo matrimonii, on the ground of cruelty. Complainant also sought the custody of their ten year old child, and error is assigned with respect to that phase of the decree.
The case was heard ore tenus by the trial court.
The court decreed that the custody of the minor child, William Roger Hougesen, be awarded to his father, appellee, with the right of the mother, appellant, to have the child visit her on alternate week ends at the home of the maternal grandparents. Another motion for custody was subsequently filed but the court denied the motion and reaffirmed its previous order of visitation.
It is well understood that where the trial court hears testimony in open court its findings of fact are to be accorded the same weight as the verdict of a jury and this court will not disturb those findings unless palpably wrong, Horton v. Gilmer, 266 Ala. 124, 94 So.2d 393; Rudicell v. Rudicell, 262 Ala. 41, 77 So.2d 339.
The evidence on the question of whether or not the appellee committed actual violence on the person of appellant is strictly contradictory. Our cases are clear that a divorce on the ground of cruelty is justified only when physical violence endangering the life or health of the complainant has occurred or is reasonably apprehended. Campbell v. Campbell, 252 Ala. 487, 41 So.2d 185. The only legal evidence offered on behalf of complainant showing such violence was by the appellant herself. She testified that appellee beat her prior to separation and subsequently after their separation, in appellee's car. Appellee, of course, denied this, and according to the testimony of witnesses, one of whom was in the car when the appellee is alleged to have hit appellant, they had never seen any acts of violence committed against appellant by appellee.
The burden of proof, of course, was upon complainant to reasonably satisfy the trial court of the truth of her charge. Hammon v. Hammon, 254 Ala. 287, 48 So.2d 202. Upon careful consideration of the entire record, we cannot say with any degree of certainty that the evidence so supported her charge that the findings of the trial court to the contrary were palpably wrong.
With respect to the claimed error in the awarding of custody, we are likewise unconvinced that the trial court was in error in awarding the custody to the father. The best interests of the child is the supreme concern, and the trial court who heard all the testimony is better advantaged than we to make that decision.
We find no error in the record.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.