Smither v. Smither

L. CHARLES WRIGHT, Retired Appellate Judge. Following an ore tenus proceeding, the parties were divorced by a final decree entered by the Circuit Court of Mobile County. The wife was awarded custody of the minor child. The husband appeals and asserts that the trial court abused its discretion in awarding custody to the wife. A child custody award incident to divorce is a matter within the discretion of the trial court. Cole v. Cole, 442 So.2d 120 (Ala.Civ.App.1983). It is well established that in initial custody determinations the parties stand on equal footing without a favorable presumption to either. Santmier v. Santmier, 494 So.2d 95 (Ala.Civ.App. 1986). The paramount consideration in deciding which parent should have custody is the health, safety, and well-being of the child. Ex parte Hilley, 405 So.2d 708 (Ala. 1981). Where a custody award is made, this court will presume that the trial court correctly applied its discretionary authority to adjudge the child’s best interests. Cole. This presumption arises because the trial court is in the best position to see and hear the witnesses. Cole. We will reverse the trial court only if it has abused its discretion or if the judgment is so unsupported by the evidence as to appear clearly and plainly wrong. Lightfoot v. Bylsma, 412 So.2d 813 (Ala.Civ.App.1982). If the decree is supported by credible evidence, it is our duty to affirm it. Cole. To detail the facts of this case as revealed in our careful review of the record would serve no useful purpose. Suffice it to say that misconduct was alleged against each party and supported by some evidence. Our review of the record convinces us that the trial court properly considered the health, safety, and well-being of the child in exercising its discretion to award custody to the wife. We find no abuse of discretion. This case is affirmed. The wife’s request for an attorney’s fee on appeal is granted in the amount of $250. The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court. AFFIRMED. All the Judges concur.