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02/10/95 SARAH BERKE WILLING v. STEVEN JAMES

February 10, 1995

SARAH BERKE WILLING
v.
STEVEN JAMES WILLING; STEVEN JAMES WILLING V. SARAH BERKE WILLING



Appeals from Shelby Circuit Court. (DR-92-191). Michael Joiner, Trial Judge.

Released for Publication May 24, 1995.

Yates, Judge, Crawley, J., concurs. Robertson, P.j., concurs in the result only. Thigpen and Monroe, JJ., concur in part and Dissent in part.

The opinion of the court was delivered by: Yates

YATES, Judge

Following an ore tenus proceeding, the trial court divorced the parties, who are both medical doctors. The trial court awarded the father custody of the parties' minor child and granted visitation to the mother. It also ordered the mother to pay $500 per month in child support and divided the marital property and personal property of the parties.

The mother appeals, contending that the trial court abused its discretion in awarding custody to the father and in limiting her visitation rights. The father cross-appeals, contending that the trial court abused its discretion in awarding the mother $50,000 as part of the property division.

The main consideration in determining custody is the welfare and best interests of the child. Brown v. Brown, 602 So. 2d 429 (Ala. Civ. App. 1992). When the evidence in a divorce case is presented ore tenus, the matter of child custody is within the sound discretion of the trial court and its ruling on that matter will not be reversed on appeal unless it is so unsupported by the evidence as to be plainly and palpably wrong. Id. Factors the trial court may consider in determining custody include "the child's age and sex and the ability of each parent to provide for the child's emotional, educational, material, moral, and social needs." Id. at 431. It is also proper for the court to consider the age, character, stability, and mental and physical health of the parties seeking custody. Smith v. Smith, 578 So. 2d 1342 (Ala. Civ. App. 1991).

Both parents presented ample testimony concerning their ability to care for the child. Psychologists who testified on behalf of the mother stated that she was nurturing and emotionally sensitive to the needs of the child. However, there was also testimony to indicate that the father could provide structure and a consistent routine for the child. The guardian ad litem recommended that the trial court grant custody to the father, basing her recommendation primarily upon the stability that she believed the father could provide. The mother argues that the child prefers to live with her and that the trial court failed to consider this fact in making its custody determination. Regardless of whether the child expressed such a preference, "the wish of a child to be with one parent rather than another is not compelling, but, rather, is only one factor to be considered by the trial court." Hayes v. Hayes, 512 So. 2d 119, 121 (Ala. Civ. App. 1987).

Nothing in the record indicates that the trial court failed to consider the evidence. The trial Judge indicated at the close of the hearing that he was convinced that both of the parties loved the child. He stated that he would have to further consider the evidence before making the custody determination. He took the case under advisement, stating, "I will make the decision that I think is in the best interest of [the child]." We conclude that the trial court did not abuse its discretion in awarding custody to the father.

The mother next contends that the trial court abused its discretion in restricting her weekend visitation to "the first and third weekends of each month, from 6:00 P.M. on Thursday until 6:00 P.M. on the following Saturday." We agree. She argues that the requirement that weekend visitation be exercised on Thursday through Saturday, rather than on Friday through Sunday, was not supported by the evidence, because, she says, the child was about to begin school and changing his household during the week would be disruptive. She also states that she regularly works every Friday.

The primary consideration in determining visitation rights for a noncustodial parent is the child's welfare and best interests. Hand v. Hand, 617 So. 2d 1040 (Ala. Civ. App. 1993). Clearly, the mother cares for and is concerned about the child, and it is in the child's best interests to have the opportunity to maintain a meaningful relationship with his mother. The weekend visitation provides the mother and child only one full day together. Because that full day comes on what is a work day for the mother, she in effect has no full day of visitation. We must conclude that the weekend visitation schedule is unreasonable, and an abuse of discretion, given the work schedule of the mother. Speakman v. Speakman, 627 So. 2d 963 (Ala. Civ. App. 1993). Accordingly, that portion of the judgment setting weekend visitation is reversed and the cause is remanded for the court to award the mother weekend visitation on the first and third weekends of each month, from 6:00 p.m. on Friday until 6:00 p.m. on the following Sunday.

Finally, the mother contends that the trial court abused its discretion in restricting her ability to engage in activities with the child. The divorce judgment provides that the father

"shall make all arrangements regarding medical care and treatment of the minor child. [The father] shall also make any and all arrangements regarding social, religious, cultural, athletic and academic activities of the child. [The father] is encouraged to consult with [the mother] regarding all activities of the child and to consider the wishes and interest of [the mother] in making final decisions regarding the child. [The mother] shall not make any arrangements for the child or enroll the child in any activity without first consulting with [the father], except [the mother] shall ensure that the minor child receives any emergency medical care that may be appropriate."

The mother argues that this provision prevents her from doing anything with the child without the father's permission. The trial court could have decided that the parties would be, or might be, unable to agree and that the custodial parent should have the ultimate ...


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