Sherk v. Sherk

315 So. 2d 437, 55 Ala. App. 345, 1975 Ala. Civ. App. LEXIS 550
CourtCourt of Civil Appeals of Alabama
DecidedJuly 9, 1975
DocketCiv. 418
StatusPublished
Cited by4 cases

This text of 315 So. 2d 437 (Sherk v. Sherk) 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
Sherk v. Sherk, 315 So. 2d 437, 55 Ala. App. 345, 1975 Ala. Civ. App. LEXIS 550 (Ala. Ct. App. 1975).

Opinion

BRADLEY, Judge.

The appeal is from a decree denying appellant-father’s petition for modification of a prior decree of divorce in which custody of the minor child of the parties was awarded to the appellee-mother.

In the original divorce decree, and as later modified, the mother was awarded custody of the minor child and the father was awarded visitation rights that allowed him to have the child from June 15th to August 15th of each year, for a portion of the Christmas holidays, on Father’s Day of each year, and the third weekend of each month.

Appellant, in his petition for modification of the previous decree, suggests that appellee has neglected their son to such an extent that custody should be awarded to him.

It is the rule that a party to a child custody decree who seeks to alter the custody arrangement must allege and prove a material change in the circumstances since the decree awarding custody. Cox v. Cox, 48 Aia.App. 574, 266 So.2d 784. It is also the rule that the trial court’s findings and conclusions in such cases will not be overturned unless they are plainly and palpably wrong. Wilson v. Wilson, 53 Ala.App. 201, 298 So.2d 622, cert. den. 292 Ala. 761, 298 So.2d 627.

The allegations of neglect in appellant’s petition charge that appellee has neglected the child by failing to furnish sufficient food and clothing and leaving him alone for long periods of time without supervision; that the child has suffered emotional and mental disturbance as a result of the neglect; and that appellee has attempted to alienate the child’s affection for his father by refusing to permit appellant to telephone the child and by refusing to permit the child to visit with his father on certain occasions.

The evidence shows that appellee and the child live in St. Louis, Missouri and the appellant lives in Huntsville, Alabama. The appellee works as a practical nurse for individuals in their homes. Prior to the filing of the petition for modification, appellee’s job required that she work about twelve hours a day. Her usual work week was five days; however, on occasion she would have to work on the weekends.

Appellee testified that Wendell, her nine year old son, would get up in the mornings, get ready for school, she would prepare his breakfast, and he would be taken to school, either by herself or another adult. He would eat lunch at school. At three p. m. when school was out, Wendell would usually walk home, depending, however, on the weather. The distance from the school to their house was a few blocks. Many times she would pick him up at school or have someone else pick him up and take him where he was supposed to go.

She testified that she had engaged, over a period of time, several people to care for her son when she was not at home. These people were named, and most of them were deposed and stated that they had at one time or another been engaged to look after the child.

On one occasion the chauffeur at her place of employment was asked to take Wendell htome and the chauffeur did, but left him there alone. A juvenile officer at the police department found the child at home alone and called appellee and told [348]*348her that her son was home alone. She immediately made arrangements for someone to stay with him until she could get home.

She stated that she would occasionally leave Wendell alone for short periods of time while she went to the washeteria, but never more than thirty minutes at a time.

She said Wendell was interested in Cub Scouts and she would go with him to sporting events and movies, and they would play badminton and catch-ball. She said Wendell made good grades in school; had a lot of friends who visited in his house and he visited in their houses; and that he was not a disciplinary problem.

Appellee said that she encouraged her son to correspond and communicate with his father and she felt like he and his father had a good relationship. She did say that Wendell had expressed to her a fear of his father.

Appellant testified that from January 1972 to October 1972 he visited his son every third weekend in St. Louis. This required that he drive to St. Louis for these visits. After October 1972, the boy flew to Huntsville for his visitation periods. Appellant also writes to his son almost weekly and calls him on the telephone frequently.

Appellant stated that during the first part of 1973 appellee refused on several occasions to let Wendell go to Huntsville for visitation. Appellee explained that one time Wendell had an important Cub Scout meeting scheduled where he was to receive his Wolf Badge. Appellant was invited to attend but did not. Appellee testified that at other times Wendell was not allowed to fly to Alabama because she had no one responsible to take the child to the airport, check him in, see that he got on the plane, or pick him up when he returned to St. Louis. She also said that it cost $40 for this undertaking and at times she did not have the money. Appellant counters by saying that he engaged a friend of his, a Mr. Wilson, to transport the boy to and from the airport, but appellee would not agree to it. Appellee answered by saying she would not let Wilson transport the child for the reason that he had assisted appellant in taking the boy from school in St. Louis to Alabama without her knowledge or approval.

Appellant said that Wendell told him that his mother left him alone in the house from the time he got out of school until she got home, which would be anywhere from eight to nine p. m. On one occasion appellant called Wendell and found him at home alone. Appellant then called the police department. In response to this call the juvenile officer went to the house and found the boy alone. The appellee was warned not to leave him alone again. Appellee said that she had not left him by himself except for short periods of time since that incident.

Appellant also said that appellee and her boyfriend had carried his son to a nightclub on one occasion where he was left outside in below-freezing weather.

Wendell testified that they got there about eleven p. m. and stayed to about twelve-thirty a. m., that the smoke inside bothered him, and he stayed in an area between doors to the club.

Appellee testified that they went to the club because someone Wendell knew was playing there. They arrived about nine-thirty p. m. and stayed about thirty minutes. While there, they had an alcoholic drink and Wendell had a soft drink

She said the boy spent a good bit of time going in and out of the lounge.

Appellant claimed that appellee required Wendell to sleep in the same room with her and that this was affecting his emotional health.

Appellee said each slept in separate beds, but they would be pulled up close to each other because the child had bad dreams, and also the only air conditioner was in that room.

Wendell was asked if on one occasion his mother drank alcohol and later fell and injured herself, and he said that she did. [349]*349Appellee denied this happened. She did admit to having a drink now and then.

Two psychiatrists, one called by the mother and the other by the father, saw the child on different occasions. One stated that the boy needed to be in a household where there was an adult male and that he very much wanted to be with his father.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Warwick v. Warwick
372 So. 2d 1108 (Court of Civil Appeals of Alabama, 1979)
Henderson v. Moore-Handley, Inc.
349 So. 2d 1165 (Court of Civil Appeals of Alabama, 1977)
Ely v. Casteel
341 So. 2d 730 (Court of Civil Appeals of Alabama, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
315 So. 2d 437, 55 Ala. App. 345, 1975 Ala. Civ. App. LEXIS 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherk-v-sherk-alacivapp-1975.