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05/24/96 DANNY BATES v. CATHY BATES

May 24, 1996

DANNY BATES
v.
CATHY BATES



Appeal from Marshall Circuit Court. (DR-94-000397.00). F. Timothy Riley, TRIAL JUDGE.

Released for Publication September 4, 1996.

Crawley, Judge. Robertson, P.j., and Yates, J., concur.

The opinion of the court was delivered by: Crawley

CRAWLEY, Judge

Following 19 years of marriage, Cathy Bates filed a complaint for divorce against Danny Bates, alleging an irretrievable breakdown of the marriage. After an ore tenus hearing, the trial court divorced the parties; it awarded Cathy Bates custody of the parties' two minor children and ordered the husband to pay $800 per month in child support and one-half of the mortgage debt owing on the marital residence.

The husband raises three issues on appeal: (1) whether the trial court erred in awarding custody of the parties' minor children to the wife; (2) whether the trial court abused its discretion in dividing the marital property and requiring the husband to pay one-half of the mortgage debt owing on the marital residence; and (3) whether the trial court erred in failing to apply the mandatory child support guidelines. After a careful review of the record, we affirm in part and reverse and remand in part.

The standard of review in custody cases was clearly set forth by our court in Phillips v. Phillips, 622 So. 2d 410 (Ala. Civ. App. 1993):

"Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So. 2d 440 (Ala. Civ. App. 1989), and Vail v. Vail, 532 So. 2d 639 (Ala. Civ. App. 1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So. 2d 1343 (Ala. Civ. App. 1990); Flowers v. Flowers, 479 So. 2d 1257 (Ala. Civ. App. 1985)."

622 So. 2d at 412. See also Ex Parte Perkins, 646 So. 2d 46, 47 (Ala. 1994).

The husband first argues that the trial court erred in awarding custody of the parties' minor children to the wife. The primary consideration in determining custody issues is the best interests and welfare of the children. Brown v. Brown, 602 So. 2d 429 (Ala. Civ. App. 1992). The trial court considers several factors, including the age and needs of the children and each parent's ability to provide for those needs. Id. Other factors for the trial court to consider are the parents' ages, character, stability, health, and home environment. Jensen v. Short, 494 So. 2d 90, 91 (Ala. Civ. App. 1986). Additionally, while this factor is not dispositive, the trial court may consider the child's preference regarding custody. Brown, 602 So. 2d at 431.

The record discloses that the wife is 37 years old, is a high school graduate, and is employed with Chrysler Corporation earning a gross monthly income of $3,720.91. The wife currently works the third shift (9:00 p.m. to 6:30 a.m.), but has requested and applied for a transfer to the first shift. The wife is sometimes required to work on Saturdays and a few hours on Sunday. The wife picks up the children from school almost every day and primarily takes care of the children's school affairs. The wife attends the children's extracurricular activities when her schedule permits. While the wife is at work, the maternal grandmother stays with the children and on a few occasions a 16-year-old cousin stays with the children.

The husband is also 37 years old, and he is currently employed by North Alabama Water Systems. During 11 years of the marriage, the husband worked two jobs. The husband also worked a third shift for a while during the marriage and during that time, the wife was the primary person responsible for the children. The husband's gross monthly income is $2,270.00 and at the time of trial, the husband was paying for the children's health insurance. The husband takes the children to school every morning and assists them in their homework. The husband also attends the children's extracurricular activities.

During the course of the marriage, the wife's boss contacted her at home on numerous occasions. There was evidence of other instances of contact between the wife and her boss outside of their work environment, but no evidence of any wrongdoing on the part of the wife. The husband requested that the wife stop spending time, outside of work, with her boss. This relationship between the wife and her boss caused great concern for the husband. During one argument with the wife regarding this situation, the husband obtained a gun and threatened to commit suicide. The parties' minor son was present at this time.

The parties' minor daughter, age 15, testified at the hearing. She stated that after her parents separated, she entered counseling. She testified that she did not like to babysit her little brother, but that she had to on several occasions when her mother worked. She stated that the 16-year-old cousin stayed with her and her brother maybe 7 ...


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