The appeal is from a decree of the circuit court of Talladega County, in equity, rendered on July 22, 1954, changing the provisions of a decree rendered by that court on January 8, 1952, which relate to the custody of the minor children of Thomas E. Vinson and his former wife, Mrs. Marilyn Walters (Vinson) Shannon.
Under the decree of January 8, 1952, the wife was awarded an absolute divorce on the ground of adultery. As to the custody of the children, the decree provided:
On July 13, 1954, Thomas E. Vinson filed in the circuit court of Talladega County, in equity, the following petition, wherein he refers to himself as the respondent and to his former wife as the complainant, the places they occupied in the original litigation which lead to the decree of January 8, 1952:
After her demurrer to the petition was overruled, Mrs. Shannon filed an answer wherein she averred in substance as follows: That the father is not a suitable and proper person to have custody of the minor children for the reason, among others, that since the divorce decree he has married and is living with the woman whose name was alleged in the bill for divorce as the one with whom he had committed adultery; that the mother, Mrs. Shannon, is a fit and suitable person to have the care, custody and control of the children and is able to provide for them. The answer concluded as follows: "Premises considered, the complainant prays that the decree of this court be not modified so as to give respondent any custody or control over said minor children but that they shall at all times and places be in the care, custody and control of your complainant, and your complainant will ever pray etc."
The husband evidently treating the language of the prayer as being sufficient to constitute a cross bill, filed his demurrer thereto, which was overruled.
Thereafter the cause came on for hearing wherein the witnesses were examined orally before the court. After finding that Mrs. Shannon had wrongfully deprived her former husband, Thomas E. Vinson, of the privilege of visitation with his children as granted to him in the decree of January 8, 1952, and finding further that it would be to the interest of the children to visit with their father, the trial court decreed in part as follows:
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We have said that a decree fixing the custody of minor children is conclusive of the interests of the children and the rights of the parents, so long as the status at the time of the decree remains without material change and that the burden is on the party seeking a change of custody to show some change of conditions or other substantial reason for the change of custody. White v. White, 247 Ala. 405, 24 So.2d 763; Wren v. Stutts, 258 Ala. 421, 63 So.2d 370; Padgett v. Padgett, 248 Ala. 234, 27 So.2d 205; Ogle v. Ogle, 251 Ala. 623, 38 So.2d 864.
But in the case at hand we think the only change in status which it was incumbent upon the father, Thomas E. Vinson, to allege in order to justify the court's consideration of his petition for change of custody was that he had been discharged from the military service. This, for the reason that the decree of January 8, 1952, not only in its recital of facts, but in its ordering parts as well, clearly discloses that the trial court was awaiting the discharge of the father from military service before fixing the permanent custody of the children. That decree was intended to be conclusive of the interests of the children and the rights of the parents only so long as the father remained in the military service.
In his petition Vinson alleged, among other things, that he has been discharged from the service; that he is able to care for his children in a fit and proper manner; that he is a fit and proper person to have their custody in the home of his parents, who are persons of good character, and that it is to the best interests of the children that their custody be awarded to his care during the non-school summer months. Such averments made the petition good as against the demurrer interposed. In proceedings of this nature mere legal niceties are not favored. Easterling v. Caton, 260 Ala. 543, 71 So.2d 835, and cases cited.
It is immaterial in this case whether the provisions in the decree here under review which spell out the exact dates on which the children shall visit their father in the home of his parents be considered as awarding partial custody or as an implementation of the provisions of the previous decree relating to visitation. The trial court was fully justified under the facts which it found to exist and in view of the temporary nature of the custody provisions of the decree of January 8, 1952, to award partial custody to the father after
The parties to the appeal maintained their home in Sylacauga, Talladega County, prior to their divorce in January, 1952, although, as shown before, at the time that decree was rendered Vinson was in the service. After the divorce the then Mrs. Vinson and her three children moved to the home of her parents in Birmingham. She secured a job and her mother looked after the children during working hours for five days a week. In September, 1953, the appellant was married to Mr. Shannon, who was divorced by his first wife on the ground of cruelty. After her marriage to Shannon, appellant and the three children born of her marriage to Vinson moved into a home provided by Shannon located approximately five miles from the home of her mother in Birmingham. Appellant has continued to work, as does her second husband. Five days a week the children are driven to the home of appellant's parents, where they are cared for by her mother. The oldest child was of school age, being nine years old at the time of the hearing in July, 1954. He attended a school located only a few blocks from the home of his maternal grandparents. Neither of the other two children had entered school. Sammy was six years of age and Elizabeth four.
Sometime prior to December 23, 1953, the date of his discharge, Vinson was married to his alleged paramour. Although he still maintains his legal residence in Sylacauga, Vinson secured employment in Birmingham, where he and his second wife maintain an apartment. They have a young baby. He frequently visits his parents in their home in Sylacauga and the evidence shows that it is feasible for him to spend much of his time there during the periods fixed in the decree for the children to be in the home of their paternal grandparents.
Construing the decree here under review as providing for divided custody, it does not follow for that reason alone that it is erroneous. Since the children are entitled to the love, advice and training of both father and mother, divided custody is not wrong in principle, if the best interests of the children are thereby subserved. Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561; McGregor v. McGregor, 257 Ala. 232, 58 So.2d 457; Wheeler v. Wheeler, 249 Ala. 119, 29 So.2d 881. The trial judge expressly found that it would be to the best interests of the Vinson children that they be permitted to be with their father in the home of his parents on the specified dates. This finding could well have been founded in part on the extreme hostility which the trial court found that the mother entertains towards her former husband and to some extent towards his parents. As before pointed out, the evidence was taken orally before the trial judge and thus he had the advantage of this court as to questions of fact, for he was able to observe the personalities of the parties, their bias, their demeanor, manner and reactions. It is this type of case which calls for the application of a strong presumption in favor of the findings of the trial judge.
One of the pertinent inquiries in cases involving controversies between parties over the custody of children is which party was at fault in terminating the marital relation. Piner v. Piner, 255 Ala. 104, 50 So.2d 269; Hammac v. Hammac, 246 Ala. 111, 19 So.2d 392.
In the case at bar the decree of January 8, 1952, is conclusive as between the parties of Vinson's marital misconduct. Johnson v. Johnson, 215 Ala. 487, 111 So. 207; Hanby v. Hanby, 229 Ala. 527, 158 So. 727. And we said in the cases just cited that a decree granting a divorce to the husband on the ground of the wife's adulterous acts is conclusive of her relative unfitness to have the custody of the children. See McGregor
Under the evidence presented in this case, we cannot say that the marital misconduct of Vinson which precipitated the divorce should stand as a conclusive bar to all future contacts with his children. As we have often said, the matter of prime concern is the welfare of the children and after a careful reading of the record before us, in connection with the trial court's finding of fact, we are of the opinion that the decree here under review is based on what the trial court concluded, after hearing the evidence and viewing the parties and their witnesses, was for the best interest of the children. We have not overlooked the fact that Vinson has married the woman alleged to have caused the divorce from his first wife. But the children are not to be under her control in any way. As shown before, they are to be with their paternal grandparents in Sylacauga during the comparatively short period each year when they are in the legal custody of their father.
We have treated above the assignments of error which have been argued in brief and no reversible error appearing therein, the decree appealed from is due to be affirmed. It is so ordered.
STAKELY, GOODWYN, MERRILL and MAYFIELD, JJ., concur.