Dobbins v. Dobbins

This is a child custody case. *Page 901 The issue on appeal concerns the custodial disposition of the minor child of the parties. Following an ore tenus proceeding, the trial court entered an order awarding custody of the child to the father, with rights of visitation on behalf of the mother. All of the issues pertinent to the divorce case were settled between the parties. The mother's post-judgment motion was denied; hence, this appeal. We begin our analysis of this case by noting that the determination of child custody issues is committed to the sound discretion of the trial court, which will not be disturbed or reversed on appeal, absent a plain or palpable abuse of discretion. Ezell v. Hammond, 447 So.2d 766 (Ala.Civ.App. 1984). A full recitation of the facts of this case would serve no useful purpose; however, it is noted that the court heard the testimony regarding the parties' relationship with each other, their parenting skills or lack thereof, the treatment of the child in question as compared to the treatment of his half-siblings, and the conflicts between the parties. The reason for the ore tenus rule is well-established, i.e., that the trial court had the opportunity to observe the witnesses as they testified, to judge their credibility and demeanor, and to observe what this court cannot perceive from a written record. See Ex parte Walters, 580 So.2d 1352 (Ala. 1991). Thus, the mother has failed to provide any evidence that the trial court abused its discretion in awarding custody to the father. "This court cannot assume error; the appellant has an affirmative duty of showing error."Perkins v. Perkins, 465 So.2d 414, 415 (Ala.Civ.App. 1984). Accordingly, we find no error, and the judgment of the trial court is due to be, and it is hereby, affirmed. AFFIRMED. ROBERTSON, P.J., and RUSSELL, J., concur.