Sharbutt v. Sharbutt

239 So. 2d 568, 46 Ala. App. 198, 1970 Ala. Civ. App. LEXIS 450
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 23, 1970
Docket3 Div. 22
StatusPublished

This text of 239 So. 2d 568 (Sharbutt v. Sharbutt) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sharbutt v. Sharbutt, 239 So. 2d 568, 46 Ala. App. 198, 1970 Ala. Civ. App. LEXIS 450 (Ala. Ct. App. 1970).

Opinion

BRADLEY, Judge.

Norman and LaWanda Sharbutt were married in February 19S9. LaWanda at the time of the marriage was 14 years old and Norman was 28 years old.

[199]*199They lived together until July 6, 1968, at which time they separated. During the time they were married there were four children born to LaWanda and Norman Sharbutt — three boys and a girl.

On July 24, 1968 a divorce based on cruelty was granted to LaWanda, and, as agreed, custody of the four children was granted to LaWanda, and Norman was required to pay $200 per month for the support and maintenance of said children.

At the time of the divorce, Norman was in the U. S. Air Force, and shortly thereafter was transferred to the Phillippine Islands for duty.

Norman returned to the U. S. in October 1968 for a fifteen day leave and, as a result of this visit, a girl child was born to LaWanda and Norman out of wedlock.

The next time Norman was in the States was January 20, 1970, when he returned due to the urging of LaWanda’s relatives.

Norman filed a petition in the Circuit Court of Montgomery County, Family Relations Division, on January 27, 1970, seeking custody of the five children born to him and LaWanda, on the ground that she was no longer a fit person to care for the children.

In his petition Norman alleged that La-Wanda had deserted the children on several occasions, and that he found the three boys in a home operated by the Court and the two girls in the care of a sister of LaWanda who lived in Shelby County, Alabama.

Norman also alleged that LaWand? had remarried and was presently living in the State of Pennsylvania.

Norman’s petition was heard by the Court on March 2, 1970, at which time testimony was taken from Norman, La-Wanda, LaWanda’s new husband, a representative of the County Welfare Department, and a representative from the Youth Aid Division of the Montgomery Police Department.

After the hearing and on March 6, 1970 the Court entered a decree granting custody of the five children to Norman, permitting the two young females to reside, for the time being, with their aunt, Mrs. Leon Cost, in Shelby County, Alabama, and the three boys to reside with their father in Montgomery or with his mother who lives in Sylacauga, Alabama.

The Court also discontinued the $200 per month that had been previously awarded for the support and maintenance of the children, and then directed that Mrs. Cost be awarded $50 a month for the care of the two girls.

LaWanda was granted reasonable visitation rights with the children.

From this decree of the trial court La-Wanda has appealed to this court for review, and has assigned six grounds of error, five of which question the custody arrangements and one which contends that the court failed to consider her testimony given at the trial.

The evidence taken by the court tended to show that LaWanda had left her children on three different occasions.

The first time that appellant left her children was in October 1969 when she went to Pennsylvania to work. She was gone three weeks and left the children in the care of a neighbor.

A sister of appellant said she found the children to be in poor condition and took them to her home in Shelby County, Alabama.

The second time appellant left her children was in November 1969 when she went to Florida and worked for about two and one-half weeks. On this trip appellant did take the oldest female child with her, but left the six months old female child with one friend and the three boys with another friend.

[200]*200The friend who had the youngest girl turned her in to the Welfare Department, and neighbors complained to the Welfare authorities about the lack of care of the boys, and they were picked up and placed in the Shelter home.

• In January 1970 the appellant again left her children in the care of another person and departed for Florida to “think things out.” This absence lasted only about four days.

On this occasion the police were summoned by á neighbor to do something with the children who were wandering in the neighborhood. The policeman who answered the call, at 11:00 p.m., found three of the children in the house alone, except for a neighbor’s 15 year old son who was looking after them until the police could respond to the call, and the policeman stated that he found the house dirty and uneaten food lying around in the house. The other two children were found the next day at a neighbor’s house.

The Welfare Agency, on each of the absences of the appellant, took charge of the children and cared for them until appellant returned to Montgomery and took the children back.

Appellant testified that each time she left the children, she first made arrangements for someone to look after them, and also left an address and telephone number where she could be reached if she were needed. But, it appears from the evidence, that these people were not too reliable, for the Welfare Agency would, each time appellant was absent from home, end up with the care of the children.

LaWanda stated that at one time she worked at a truck stop for about five months, and was away from home ten to fourteen hours a day. During her absence she left the children in the care of a 17 year old Negro girl.

Appellant also testified that a man, Dick Stenson, lived with her and her children in her house for two weeks in August 1969. They were not married.

On January 16, 1970 appellant married Merle Woolfe in Montgomery, Alabama, and then went with him to Pennsylvania where they are now living.

Mr. Woolfe testified that he would like to have the children live with them in Pennsylvania, and that he was financially able to care for them. He further testified that he and the appellant lived in a comfortable home with sufficient space for the children.

Assignments of error one, two, three, four and five question that portion of the court’s decree wherein the custody of the five children is placed in the appelleefather, and wherein the two young girls are permitted to reside with their aunt, Mrs. Cost, for the time being, and the boys are permitted to reside, at times, with their father’s mother.

Assignment of error number six raises the point that the trial court failed to consider appellant’s testimony given at the hearing on the petition for modification of that part of the original decree relating to custody.

Appellant submits, in assignments one, two, three, four and five, that appellee failed to prove that she was an unfit mother, although the evidence showed that appellant had on three separate occasions left her children in circumstances where they were not being properly cared for, and lived with a man to whom she was not married in her house with her children for two weeks.

In support of her contention appellant has cited us to several cases which we do not think, after carefully reading them, would be controlling authority for her theory of the case.

This court, in the case of Randolph v. Randolph, 45 Ala.App. 326, 229 So.2d 923 (1970), was faced with a factual situation [201]*201very similar to the one we now have before us, wherein a divorce had been granted to the wife and she had received the custody of the five children.

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68 So. 2d 63 (Supreme Court of Alabama, 1953)
Randolph v. Randolph
229 So. 2d 923 (Court of Civil Appeals of Alabama, 1970)
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Blankenship v. Blankenship
94 So. 2d 743 (Supreme Court of Alabama, 1957)
White v. White
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Satterfield v. Satterfield
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Sparks v. Sparks
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Bluebook (online)
239 So. 2d 568, 46 Ala. App. 198, 1970 Ala. Civ. App. LEXIS 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharbutt-v-sharbutt-alacivapp-1970.