656 So. 2d 1205 | Ala. Civ. App. | 1995
Lead Opinion
The father appeals from the visitation provisions in an order modifying the child custody provisions of a divorce judgment.
Alex Scott Denney (father) and Angelia Denney Forbus (mother) were divorced on February 14,1991, and, pursuant to a written agreement of the parties, the mother received custody of the couple’s two children. The father brought a petition to modify the custody order in February 1998. Over the next year, the court entered several temporary orders. After conducting ore tenus proceedings, the court entered a final order on May 31, 1994, modifying the original custody award or as to allow joint custody, with the father having primary physical custody and the mother having secondary physical custody. The trial court specified the visitation/custody schedule for the mother, allowing visitation every weekend during the school year and custody from June 1 until the week before school resumes in the fall. During these summer months, the father is allowed visitation two weekends per month. The mother also has visitation for a week every Christmas and on other holidays in alternating years.
The father appeals from this modification order. He claims that the trial court abused its discretion in allowing such a liberal visitation schedule for the mother, complaining that it severely limits his primary custody. The father argues that the modified schedule
It is well settled that matters regarding both custody and visitation rest soundly within the discretion of the trial court, and that judgments regarding those matters will not be disturbed on appeal absent an abuse of discretion. Watson v. Watson, 634 So.2d 589 (Ala.Civ.App.1994). A trial court’s determination regarding visitation must be affirmed absent a finding that the judgment is unsupported by credible evidence and that the judgment, therefore, is plainly and palpably wrong. Id. at 590. Visitation cases require an examination of the facts and circumstances of the individual situation, which the trial court is able to observe. Id.
It appears that the trial court, before making its determination, considered the evidence regarding the particular facts and circumstances of this case. Over a period of 15 months, it held two ore tenus proceedings, and it entered several temporary orders before it entered the final order modifying the divorce judgment. Although we may have determined a different schedule of weekend visitations for the mother, we have no authority to substitute our judgment for that of the trial court. Absent abuse, there is no basis for reversal. Watson, supra.
The trial court obviously accepted the mother’s argument that the children needed a meaningful relationship with both parents. The primary consideration in visitation matters is the best interests and welfare of the child. Barran v. Barran, 431 So.2d 1278 (Ala.Civ.App.1983).
The father also argues that the trial court abused its discretion in setting out the schedule by which the parties were to exercise primary and secondary custody; he says that by setting out that schedule the court was essentially setting up a visitation schedule for the noncustodial parent. The father asserts that this was just a ruse to avoid a determination as to custody subject to visitation.
We reject this argument, as visitation rights are a part of custody determinations. Bennett v. Bennett, 506 So.2d 1021 (Ala.Civ. App.1987). Because the court makes visitation determinations as part of custody determinations and this court has defined a custody determination as an order providing for custody or visitation regarding a child, it is of no consequence which label the court gives to the determination. Both visitation and custody determinations are subject to the same standards of review. See Bennett, supra, at 1023.
AFFIRMED.
Concurrence Opinion
concurring in the result only.
Although I concur that the trial court’s judgment should be affirmed, I am concerned that the parties may think this court ignored the issue they raised on appeal. The father petitioned for custody, not joint custody, and on appeal, he challenges “whether or not a trial court may create joint custody, on modification, and award secondary custodial parent visitation every weekend limiting primary custody.” The mother’s brief succinctly couches the issue as simply, “[d]id the trial court abuse its discretion in awarding joint custody?”
This case exemplifies some of the confusion and problems created by use of nebulous terms in custody orders. See Ex parte J.P. & E.P., 641 So.2d 276 (Ala.1994). Regardless of the words utilized by a trial court attempting to order joint custody, if certain terms and conditions regarding custody favor one parent over the other, the appellate courts do not consider that order as a true joint custody determination. See e.g., Berrey v. Berrey, 622 So.2d 1316 (Ala.Civ.App. 1993); Blackmon v. Scott, 622 So.2d 393 (Ala. Civ.App.1993); Poe v. Capps, 599 So.2d 623
In the case sub judice, although the trial court attempted to order joint custody, in fashioning its order, it effectively granted the father’s petition and changed custody from the mother to the father subject to liberal visitation for the mother. Therefore, although the issue is couched in terms of whether a trial court can create a custody determination that was not sought, the true issue on appeal, as addressed by the majority, is whether the trial court abused its discretion in its determination regarding visitation.
Dissenting Opinion
dissenting.
I would reverse the trial court’s judgment precluding the custodial parent from having his children on weekends during the nine-month school year. I agree with the majority that determinations of custody and visitation are within the sound discretion of the trial court; however, in this instance I find an abuse of that discretion.
The trial court split custody between the parents based on the school year and the summer. By doing so, it found both parents to be fit and proper custodians for the children.
The father was to have the children during the school year; however, the mother was granted visitation every weekend from 6:00 p.m. on Friday until 4:00 p.m. on Sunday. The court did specifically grant the father one weekend in September, for the children to attend his family reunion. The mother was to have the children in June, July, and August, with the father having visitation on the second and fourth weekends of each month. A comparable schedule, allowing the father access to his children on weekends during the school year, would have been reasonable.
The father’s time with the children during the school year comes on a work day for him and á school day for the children. Given these schedules, I believe that the trial court’s refusal to allow the father some weekend time with his children was unreasonable and was an abuse of discretion. See Speakman v. Speakman, 627 So.2d 963 (Ala.Civ. App.1993).
