Summary
In Gardiner v. Willis, 258 Ala. 647, 64 So.2d 609, we stated two principles governing cases where a modification of the original decree involving custody was sought.
Summary of this case from Raines v. BaucomOpinion
4 Div. 690.
April 23, 1953.
Appeal from the Circuit Court, Geneva County, Bowen W. Simmons, J.
The decree appealed from is as follows:
"Comes the petitioner in the foregoing cause and files her petition in this court for a modification of that certain decree made and entered and filed in this court on April 12, 1948, in which the respondent herein was the petitioner or complainant and the petitioner herein, under the name of Irene Willis Rudd, she being at that time married to one Mr. Rudd, was the respondent.
"The petitioner in this cause alleges in effect that there has been a change of conditions since the rendition and filing of the aforementioned decree on April 12, 1948, awarding to the respondent herein the custody of the two minor children, sons of respondent and complainant herein and the product of their union in marriage, and praying that said decree be modified and that she be awarded the custody of said minors.
"The court heard the same at Geneva, Alabama, on July 7 (sic), 1951, and listened to the testimony of a plurality of witnesses on both sides. The evidence was impressive that there has been no change of conditions in the home of the respondent herein since April 12, 1948, and that the children are being well cared for in the home of their lather, although there may be absent from said home some of the modern sanitary and bath facilities, but the surroundings are good.
"The evidence is further convincing and impressive that the petitioner here is much happier in her present home with her third husband, and that they have gotten off to a good start in a business career and the prospects of success, if they continue to live together and manifest a continuance of their present cooperation, are good. However, as promising as conditions may appear and are at the present time, continuance is yet in the realm of speculation.
"The respondent in this case contends that the petitioner, sometime prior to April 12, 1948, brought the children to his home and left them, and he further contends that the petitioner stated that she was going to California and would not be back. The petitioner admits that she left the children with their father and the respondent herein, but contends that her departure was temporary and that she intended to come back and get the children. This court, acting through Judge Brannen, determined that the welfare of the children would be better subserved under the circumstances existing at that time to leave the children with their father with the right of visitation on the part of the mother.
"It appears from the evidence now that the petitioner has remarried and is living happily with her husband, Mr. Gardiner. It further appears that they are cooperating with each other in promoting financial welfare and advancement of their home, which is a comfortable one located a few miles out of Gainesville, Florida. As to the permanency of this happiness the court, of course, can only hope for the best, but the court deems it unwise to grant the custody of the children to the mother and disrupt the present arrangement. We do not see that such disruption would promote the welfare of the children. There is not a pronounced change of circumstances in the judgment of the court as would warrant a change of custody.
"However, this court cannot fail to recognize that the petitioner for nine months in two separate instances was pregnant and that she went through the pain and discomforts of childbirth. The court cannot further fail to recognize the fact that a mother's love, when true and sincere, has a very pronounced effect upon the lives of her children, and that an opportunity to shower that love upon them, even for short intervals of time, would be to their best interest and welfare. If the mother is sincere and devoted to the children as petitioner at this time appears to be, then the children may derive some benefit from associating with her.
"We now find that the parental home of the petitioner in Coffee County is broken up and that her mother lives about with the children. We further find that the petitioner has no place to take the children in Coffee County and get them away from the home of the father, except that she take them to hotel or some other place which would add to her expense. At the conclusion of the trial this court thought that it would be to the best interest of the children, and continues to so think, for the mother to be allowed to visit the children away from the home of her ex-husband. We do not intend to insinuate that there is anything wrong with the ex-husband, but it certainly is embarrassing for them to be required to remain in each other's presence for any appreciable length of time to the end that the mother may see the children.
"Having considered the matter from all angles and having weighed all the testimony carefully, this court has reached the conclusion that it would be to the welfare and interest of the children that the petitioner be allowed to take the children to the home of Mrs. Eunice Rachels, who lives in DeFuniak Springs, Florida, and there visit with the children. We have investigated and find that Mrs. Rachels is willing for the children to visit in their home and to be with their mother, and we also find that she is a woman of excellent reputation and has a cottage on the beach and is willing for the children to stay at her home and the cottage during the visitations of the mother.
"We do not think it wise for the petitioner to keep the children away from the home of their father for any appreciable length of time. We say this because we do not want the children to become alienated and dissatisfied with the home of their father which would occur if the periods of visitation were too long. We conclude that short periods of recreation during the summer time would be healthful and beneficial to the children."
It is therefore ordered, adjudged and decreed as follows:
"That the decree of this court made and entered on April 12, 1948, in case No. 3721, styled Willie Frank Willis vs. Irene Willis Rudd, filed in Geneva County, Alabama, be modified by granting to the petitioner herein the right to take said children away from the home of the respondent herein for one week during the month of July and one week during the month of August, during the year 1951, and one week each during the months of June, July, and August of each succeeding year pending further orders of this court. Said children shall not be carried out of the State of Alabama except to DeFuniak Springs, Florida, to the home of their aunt, Mrs. Eunice Rachels, and to Mrs. Rachel's cottage on the beach near DeFuniak Springs. Said visits should have reasonable intervals of time between each visit. In all other respects said original decree of April 12, 1948, shall remain in full force and effect until the further orders of this court."
J. C. Fleming, Elba, and Wm. W. Flournoy, De Funiak Springs, Fla., for appellant.
In determining the question of custody of minor children, the welfare and best interest of the children are paramount considerations. Under the circumstances of this case and the fact that husband caused the separation, custody should have been awarded to the wife, the mother of the children. Green v. Green, 249 Ala. 150, 30 So.2d 905; Weems v. Weems, 255 Ala. 210, 50 So.2d 428, 429; Hawkins v. Hawkins, 219 Ala. 31, 121 So. 92; Stephens v. Stephens, 247 Ala. 340, 24 So.2d 449; 2 Nelson on Divorce (2d Ed.) 175; Basden v. Basden, 209 Ala. 632, 96 So. 881; Young v. Young, 214 Ala. 642, 108 So. 746; Brown v. Brown, 229 Ala. 471, 158 So. 311.
Jas. A. Mulkey and E. C. Boswell, Geneva, for appellee.
Judgments and decrees awarding custody of minor children should be rendered so as to effect the best interest of the children, without undue regard to technical pleadings. State v. Black, 239 Ala. 644, 196 So. 713; Murphree v. Hanson, 197 Ala. 246, 72 So. 437; Ex parte State, 250 Ala. 579, 35 So.2d 507; Moss v. Ingram, 246 Ala. 214, 20 So.2d 202; Rosa v. Underwood, 235 Ala. 447, 179 So. 530; Wheeler v. Kelley, 255 Ala. 614, 52 So.2d 700.
This is an appeal from the decree set out above by the reporter, which decree in effect denied the petition of the complainant, Mrs. Gardiner, to amend or modify a decree which awarded the custody of complainant's two minor sons to their father, Mr. Willis, respondent and appellee here.
The petition was filed May 8, 1951, and was heard by the Circuit Court, in Equity, of Geneva County, on July 6, 1951. The decree is dated July 12, 1951. Notice of appeal was given January 10, 1952, and the case was submitted to this Court on March 26, 1953.
The petition of Mrs. Gardiner showed that the Circuit Court of Geneva County granted her a divorce from her husband, Willie Frank Willis, in September 1946 on the ground of cruelty, and she was awarded the custody of their two minor children. She showed further that on a petition to the court the decree was modified on April 10, 1948 awarding the care and custody of the two minor children to the husband and respondent, Mr. Willis. Complainant filed this petition to have that decree modified in that she might be awarded the care, custody and control of the two children.
At the time of the hearing the boys were nine and seven years of age, respectively. They had lived with their father and grandmother from January 1948 up to the time of the hearing. Their grandmother was seventy years of age. Many witnesses testified, including a minister, two of the boy's teachers, a doctor, a sheriff, a postmaster and neighbors of both parties. The testimony of all the witnesses, except ten who testified by deposition, was taken ore tenus before the trial court, and his finding thereon has the weight of a jury verdict and will not be disturbed by this Court unless palpably and plainly wrong, and contrary to the great weight of the evidence. White v. White, 246 Ala. 507, 21 So.2d 436; Sills v. Sills, 246 Ala. 165, 19 So.2d 521; Ray v. Ray, 245 Ala. 591, 18 So.2d 273.
The controlling consideration in dealing with the custody of minor children is the welfare of the children. Green v. Green, 249 Ala. 150, 30 So.2d 905; Hammac v. Hammac, 246 Ala. 111, 19 So.2d 392; Worthy v. Worthy, 246 Ala. 52, 18 So.2d 721.
In determining which parent in a divorce suit is entitled to the custody of the minor children each case must stand on its own peculiar facts. Green v. Green, supra; Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561.
We see no good reason to refer to the testimony further than those references contained in the decree, except to note that after the testimony was given in open court, the appellee, through his counsel stated:
"Now if the court please, we say that that is all the testimony that we offer except this, that the two boys involved in his litigation are here in court and have been all day. We realize on account of their age that they probably should not be subjected to rigorous cross examination, but we offer them to the court as the court's witnesses, if the court wishes to examine them."
Wherefore, the court said:
"The court has already talked to them in private and obtained an expression from them, which the court considers is unbiased and unprejudicial.
"Let the record show that the court has talked with the children and that the court is impressed that the children are unusually intelligent and bright, smart boys, and their demeanor is very impressive in the court's conversation with them. I will say this, the children did not show any ill will or prejudice toward their mother or toward their father, and in a very emphatic way stated that they (would) rather stay with their father, and they furthermore said that they did not have anything against their mother but did not like the idea of staying with a step-father. They didn't express any resentment toward the step-father, but said they (would) rather stay with their father. They expressed their love for their mother and seemed to be very respectful to her, but at the same time they said they did not want to go to Florida."
After the court had made the above statement he proceeded to examine the nine year old boy in open court and his testimony was the same as he had previously given to the court in private. There is no contention that the court committed error in privately examining the two minors here referred to.
We think the decree of the circuit court should be affirmed.
Affirmed.
SIMPSON, STAKELY and GOODWYN, JJ., concur.