Watson v. Watson

634 So. 2d 589, 1994 WL 20876

• Court: Court of Civil Appeals of Alabama
• Decided: January 28, 1994
• Docket: AV92000433
• Status: Published

Opinions

This is the appeal of a custody and visitation determination.

The record reveals that the parties divorced in August 1985 and that they were awarded joint custody of their two minor children pursuant to an agreement incorporated into the final judgment of divorce. In June 1992, the mother filed a petition for modification of the joint custody order seeking, inter alia, custody and child support. The father answered and filed a counter-petition seeking, inter alia, custody and child support.

Following an ore tenus proceeding the father was awarded custody subject to the mother's visitation and the mother was ordered to pay child support. The mother appeals raising several issues; however, the dispositive issues are whether the trial court abused its discretion in its custody determination, and whether the trial court abused its discretion in its visitation determination.

It is well settled that matters regarding custody rest soundly within the discretion of the trial court, and judgments regarding such will not be disturbed on appeal absent an abuse of discretion. Santmier v. Santmier, 494 So.2d 95 (Ala.Civ.App. 1986). The paramount concern in all custody cases is the best interests and welfare of the children. Santmier, supra. In the instant case, the trial court correctly noted that in view of the parties' prior exercise of joint custody, this is an initial custody determination and the applicable standard is the "best interests of the children." Ex parte Couch,521 So.2d 987 (Ala. 1988); Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App. 1990); Santmier, supra.

In making its custody determination, the mother argues that the trial court did not find her unfit, that it did not order the testimony of the minor children, and that it modified the custody order solely due to problems regarding visitation and child support. The appropriate standard, i.e., best interests, does not require a finding of unfitness. There are situations where a trial court faces a custody determination wherein more than one party is a fit and proper person to have custody of the child. See ergo, Hermsmeier v. McCoy, 591 So.2d 508 (Ala.Civ.App. 1991); H.T. and G.T. v. C.T.W. and R.J.W.,569 So.2d 418 (Ala.Civ.App. 1990). Further, visitation problems alone are an insufficient basis for changing custody orders. Means v.Means, 512 So.2d 1386 (Ala.Civ.App. 1987); Ward v.Rodenbaugh, 509 So.2d 910 (Ala.Civ.App. 1987). There is nothing in the record indicating that visitation problems caused the custody change. Additionally, the record contains generous evidence which does not concern visitation that clearly supports the trial court's order regarding custody. The mother's argument regarding the testimony of the children is not properly presented or argued and will not be addressed. Rule 28(a)(5), A.R.App.P.; Simonton v. Carroll, 512 So.2d 1384 (Ala.Civ.App. 1987).

Detailing specific facts in this case would serve no purpose in light of the vast number of cases concerning child custody. We have carefully and thoroughly reviewed the record in its entirety and find ample evidence supporting the trial court's custody determination. The record contains evidence which would support an award of custody to either parent; therefore, we find no abuse of discretion.

The mother also argues that the trial court abused its discretion in the visitation order. The matter of visitation rests soundly within the broad discretion of the trial court, and a trial court's determination regarding visitation must be affirmed absent a finding that the judgment is unsupported by any credible evidence and that the judgment, therefore, is plainly and palpably wrong. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App. 1987). Visitation cases require an examination of the facts and circumstances of the individual situation which the trial court is able to observe. Andrews, supra. Inherent in the presumption that a judgment based on ore tenus evidence is correct is the recognition that the trial court is uniquely qualified to observe the parties and adjudge their credibility. Hall v. Hall, 571 So.2d 1176 (Ala.Civ.App. 1990).

In the instant case, it appears that the trial court considered the evidence regarding the circumstances in this situation before making its determination. Although we may have determined a different or more lenient schedule for the mother's visitation, we have no authority to substitute our judgment for that of the trial court; and, absent abuse, there is no basis for reversal. Andrews, supra.

Based on the foregoing principles, we must affirm the trial court's judgment.

AFFIRMED.

ROBERTSON, P.J., concurs.

YATES, J., concurs in part and dissents in part.