Davis v. Davis , 496 So. 2d 78 ( 1986 )

EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal involves a child custody award in a divorce case.

Both parties were represented by able counsel in the trial court and on appeal.

In typical fashion, both sides presented evidence as to their own merits, as to the other spouse’s habits, faults and demerits and as to the treatment or alleged mistreatment by each parent as to their four-and-one-half-year-old daughter who is afflicted with cerebral palsy. Any detailed summary of the evidence is pretermitted because nothing would be contributed to the law by any itemization of the facts in view of the vast number of cases upon the same legal subject.

An impartial study of all of the evidence discloses that the child’s custody could have been validly awarded to either party since it was a pure factual question as to which particular custody provision would more readily serve the best interest of the child. It was peculiarly within the discretion of the trial court to answer and to decide that issue. In a divorce case, a child custody award falls within the judicial discretion of the trial court and where, as here, a custody award is made after an ore tenus trial, this court will presume that the trial court correctly applied its discretionary authority to adjudge the child’s best interest. Cooper v. Cooper, 473 So.2d 1083 (Ala.Civ.App.1985); Cole v. Cole, 442 So.2d 120 (Ala.Civ.App.1983). The trial court did not abuse its discretion in awarding this child’s primary custody to the mother. Such a decision was not palpably wrong. The final judgment was supported by the evidence and it is affirmed.

The foregoing opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court.

AFFIRMED.

All the Judges concur.