Tyler v. Tyler , 647 So. 2d 750 ( 1994 )

RICHARD L. HOLMES, Retired Appellate Judge.

This is an appeal from the award of custody of the minor children of the parties in a divorce proceeding.

Debra Flowers Tyler (mother) and Ricky Tyler (father) were married in May 1983. The parties separated in June 1992, and the father filed a complaint for divorce in August 1992, wherein he requested that the trial court award custody of the two minor children to him. Temporary custody of the children was given to the father, with visitation rights given to the mother.

After an ore tenus hearing, the trial court entered a judgment of divorce, wherein it awarded the custody, care, and control of the two minor children to the father, with visitation rights vested in the mother. The mother filed a motion for a new trial, which was denied.

The mother appeals. We affirm.

The dispositive issue on appeal is whether the trial court abused its discretion when it awarded the custody, care, and control of the two minor children to the father.

At the outset we note that the standard of review to be applied in child custody cases of this nature is well settled. When the evidence has been presented ore tenus, the judgment of the trial court is entitled to a presumption of correctness and will not be disturbed on appeal unless it is so unsupported by the evidence that it appears to be an abuse of discretion by the trial court. Jenkins v. Jenkins, 541 So.2d 19 (Ala.Civ.App. 1989).

Further, we would note that when considering custody matters in a divorce action, the trial court must determine what would be in the best interests and welfare of the children. Baine v. Baine, 510 So.2d 262 (Ala.Civ.App.1987).

With the above standard in mind, we do not deem it necessary to set out in detail the operative facts. We would note that during the course of the trial, both parents attempted to demonstrate the unsuitability of the other parent. After reviewing the entire record, we find that there was evidence to support the determination of the trial court.

Consequently, this judgment is due to be affirmed.

The father’s request for attorney’s fees on appeal is, in view of all the circumstances, denied.

The foregoing opinion was prepared by Retired Appellate Judge RICHARD L. HOLMES 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.