Howard v. HowardHoward v. Howard
Pamela Sue Howard sued Joseph Edward Howard for a divorce in May 1999. The trial court divorced the parties and, among other things, awarded the mother sole physical custody of the children. The father appeals, arguing that the trial court abused its discretion by awarding the mother sole physical custody of the children and that the trial court erred by not making a written finding as to whether domestic abuse had occurred.
In child-custody cases, the trial court‘s judgment is presumed correct and will not be reversed absent a plain and palpable abuse of discretion. Ex parte Jones, 620 So.2d 4 (Ala.1992). The primary consideration in determining custody issues is the best interests and welfare of
After reviewing the record, we conclude that the trial court did not abuse its discretion by awarding sole physical custody to the mother. The record contains evidence indicating that the father committed abuse upon the mother and the children. See
The father also argues that the trial court erred by not making a written finding as to whether domestic abuse had occurred. The father argues that the trial court‘s failure to make such a finding conflicts with the Custody and Domestic or Family Abuse Act (the “Act“),
This court has remanded causes to the trial court where the trial court awarded custody to the parent who is alleged to have committed abuse and where the trial court has not expressly applied the Act. Ray v. Ray, 782 So.2d 797 (Ala.Civ.App. 2000); M.J.Y. v. J.S.Y., 758 So.2d 571 (Ala. Civ.App.1999); Davis v. Davis, 743 So.2d 486 (Ala.Civ.App.1999); Fesmire v. Fesmire, 738 So.2d 1284 (Ala.Civ.App.1999); Dorn v. Dorn, 724 So.2d 554 (Ala.Civ.App. 1998); Harbert v. Harbert, 721 So.2d 224 (Ala.Civ.App.1998); Jackson v. Jackson, 709 So.2d 46 (Ala.Civ.App.1997).
In those cases, this court was alerted that the trial court might have erred by improperly applying, or by not applying, the rebuttable presumption of
Judge Yates in her dissent appears to argue that the trial court‘s failure to make a written finding as to whether domestic abuse had occurred may adversely affect the mother‘s arguments if the father later files a petition to modify custody. While we recognize the implications of Judge Yates‘s arguments, we conclude that her arguments show prejudice to the mother, who is not the appellant or cross-appellant in this case. We will not reverse for error not argued by an appellant or cross-appellant who will suffer prejudice. See
Therefore, the trial court‘s judgment is affirmed.
The appellee‘s request for an attorney fee on appeal is denied.
AFFIRMED.
THOMPSON, J., concurs in the result.
YATES, P.J., dissents.
YATES, Presiding Judge, dissenting.
Even though no allegations of abuse were made against the custodial parent, the mother, I believe the trial court still must make a finding on the record as to whether the noncustodial parent committed domestic abuse. Without the guidance of such a finding, this Court cannot determine if the Custody and Domestic or Family Abuse Act,
The majority contends that the trial court‘s failure to make a finding of whether domestic abuse occurred was harmless error. I disagree. A child-custody order entered in a divorce case is never absolutely final; although it is “final” with respect to the particular facts currently before the court, it is subject to modification, if the facts should change, at any time until the child reaches the age of majority. Self v. Fugard, 518 So.2d 727 (Ala.Civ.App.1987). A noncustodial parent may seek a change of custody by showing that he or she is fit to have custody and that the change would materially promote the child‘s best interest. Ex parte McLendon, 455 So.2d 863 (Ala.1984). Although the trial court‘s failure to address the mother‘s allegations of abuse against the father might appear to be harmless now, what if the father decides to seek a modification of custody? Predivorce allegations of abuse might not be allowed into evidence at that time. Cf. T.G.S. v. D.L.S., 608 So.2d 743 (Ala.Civ. App.1992) (trial court is given wide discretion in ruling on admissibility of evidence, and predivorce allegations were not allowed at custody-modification proceeding where those issues had been presented to the trial court in the original divorce proceeding).
As to the majority‘s assertion that the mother would benefit from this court‘s requiring the trial court to make a finding whether there had been abuse in this case, I agree. However, the ultimate beneficiaries would be the children. It is this court‘s duty to enforce