Fowler v. Anderson

500 So. 2d 1152 | Ala. Civ. App. | 1986

This is a post-divorce child custody case.

The parties were divorced in April 1984. An agreement of the parties was approved by the divorce judgment whereby the custody of their two minor children was granted to the mother. After a contested trial, the circuit court modified child custody on July 12, 1985, by awarding custody to the father for twelve months. That judgment also scheduled a hearing for July 9, 1986, to determine whether or not it would then be to their best interest that they be allowed to remain with their father. Considerable ore tenus evidence was presented to the trial court on July 9, 1986. A judgment was entered two days later which expressly found that the best interest of the minor children would be served by leaving their custody in the father. Accordingly, he was granted custody of the children. The mother appealed and her able counsel skillfully argues that the trial court abused its discretion by not awarding custody to the mother. The father has not favored this court with a brief.

Our close scrutiny of all of the evidence discloses that, thereunder, the children's custody could have been validly awarded to either party since the trial court was faced with a factual question as to whether it would best serve the interests of the children by awarding their custody to the mother or to the father. Under the evidence, it was peculiarly within the discretion of the trial court to answer that question and to decide that issue. The trial court is granted a judicial discretion to exercise in such child custody matters. Where a custody award is made after an ore tenus trial, this court will presume that the trial court correctly applied its discretionary authority to adjudge the best interest of minor children. Keeton v. Keeton, 472 So.2d 1082 (Ala.Civ.App. 1985). The trial court did not abuse its discretion by awarding the children's custody to the father. Such a decision was not palpably wrong for it was supported by the evidence. The final judgment is affirmed.

The foregoing opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.

HOLMES, J., concurs in result only.