Alonzo v. Alonzo , 1993 Ala. Civ. App. LEXIS 347 ( 1993 )

L. CHARLES WRIGHT, Retired Appellate Judge.

The parties were divorced by judgment on January 5, 1993. Custody of the two-and-one-half-year-old child was given to the father, with liberal visitation given to the mother. The mother appeals, charging an abuse of discretion in the award of custody to the father.

We have found from the record and the briefs of counsel that there is no material conflict in the evidence. It is admitted that the mother left the home, taking the child with her; that she cohabited with another man for some two months before moving to the home of her parents; that the child has a heart condition, which was repaired to some degree by surgery soon after birth; that the mother is a good and caring mother; that the father is a good father and is capable of caring for the child with the aid of his family members.

It appears that the grant of custody to the father was primarily because of the admitted adultery of the mother. It is the primary responsibility of the judge of the trial court who heard the evidence and observed the demeanor of the witnesses to determine custody of a minor child according to the best interests of the child. Shepherd v. Shepherd, 531 So.2d 668 (Ala.Civ.App.1988).

Our appellate courts have always said that the granting of custody is a matter within the discretion of the trial judge and that his judgment will not be disturbed on appeal unless it is clear from the evidence that his judgment is not supported therein and is plainly and palpably wrong. Sayles v. Sayles, 495 So.2d 1131 (Ala.Civ.App.1986).

Our standard of review is not what we might have done had we been the trial judge, but whether we find from the evidence that the trial judge was so in error as to constitute an abuse of his discretion. Sayles.

In this case, considering ourselves bound by that standard, we find no palpable abuse of discretion in the judgment. We, therefore, must affirm it.

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.