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628 So. 2d 634

Edge v. Edge

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Court of Civil Appeals of Alabama · decided 1993-06-04

Cited by 5 later decisions — most recently December 2000

5 state decisions

Relies on Sayles v. Sayles · 531 So. 2d 668 - Shepherd v. Shepherd · Turquitt v. Turquitt

Good law ✅— No negative treatment on recordhow we know

Decided 1993-06-04

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¶1

¶2Following oral proceedings, the Circuit Court of Jefferson County entered a final divorce decree, dividing the parties' property and awarding custody of the parties' minor daughter to the father. The mother appeals.

¶3The mother asserts that the trial court erred in reaching a decision before hearing all the testimony. She insists that the trial court informed the parties, in chambers, that it had reached a decision and that further testimony was unnecessary. This conference transpired during cross-examination of the father. The father was the first witness to testify. The alleged statement of the trial *635 court does not appear on the videotaped record of the trial.

¶4On the authority of Martin v. Martin, 623 So.2d 1167 (Ala.Civ.App. 1993), we find no error.

¶5The mother insists that the trial court erred in granting custody of the minor daughter to the father.

¶6Decisions concerning child custody are matters of judicial discretion. Sayles v. Sayles, 495 So.2d 1131 (Ala.Civ.App. 1986). When testimony is presented ore tenus, there is a presumption that the trial court's ruling regarding child custody is correct. Turquitt v. Turquitt, 506 So.2d 1014 (Ala.Civ.App. 1987). The controlling considerations in child custody cases are the welfare and best interests of the child.Shepherd v. Shepherd, 531 So.2d 668 (Ala.Civ.App. 1988).

¶7We have reviewed the lengthy videotaped record in its entirety and have determined a recitation of the facts to be unnecessary. In our opinion, the record shows that both parties are caring, attentive parents and equally fit to have custody of the child. Under such circumstances, the trial court would not have been in error if either parent was awarded custody of the child. Hood v. Wilson, 496 So.2d 76 (Ala.Civ.App. 1986). We find no error with the trial court's disposition of custody.

¶8The mother finally contends that the trial court erred in refusing to award her the Lexus automobile.

¶9Pursuant to the final decree of divorce, the father was awarded the following vehicles: a 1974 Chevrolet Corvette, a 1984 Corvette, a 1957 Chevrolet convertible, two Yamaha motorcycles, and the 1992 Lexus automobile. The mother was awarded a 1986 Chevrolet Celebrity station wagon.

¶10The record reflects that the father drives a 1992 Chevrolet pickup truck. The truck was purchased by the father's family business. He testified that he drives the truck for both business and personal use. The record indicates that the mother drives the Lexus. The father testified that at the time of the divorce the station wagon was worth about $2,000 and was at his office because it would not run.

¶11The division of property is a matter which lies within the discretion of the trial court. Hinson v. Hinson, 581 So.2d 1123 (Ala.Civ.App. 1991). A property division need not be equal, but must be equitable in light of the evidence. Hinson.

¶12We find the division of property concerning the parties' automobiles to be inequitable. The mother is in need of dependable transportation. We consider it only fair that she be awarded the Lexus automobile.

¶13The judgment of the trial court as it relates to child custody is affirmed. The award of the Lexus automobile to the father is reversed, and the case is remanded to the trial court for it to award the Lexus automobile to the mother.

¶14The parties' requests for attorney fees are denied.

¶15The 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.

¶16AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

¶17All the Judges concur.

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