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628 So. 2d 749

Alonzo v. Alonzo

Court of Civil Appeals of Alabama

Decided July 23, 1993

Court of Civil Appeals of Alabama · decided 1993-07-23

Key passage — most relied on by later courts

“Our standard of reviews 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.”

quoted by 2 later decisions, including Hodge v. Hovey, 3 So. 3d 894 - Kdh v. Tlh

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

Good law ✅— No negative treatment on recordhow we know

Decided 1993-07-23

How this case has been cited

Cited by 4 later decisions — most recently November 2012

4 state decisions

20199320002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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L. CHARLES WRIGHT, Retired Appellate Judge.

¶1The 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.

¶2We have found from the record and the briefs of counsel that there is no material conflict in the evidence. It is admitted that *750the 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.

¶3It 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).

¶4Our 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).

¶5Our 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.

¶6In this case, considering ourselves bound by that standard, we find no palpable abuse of discretion in the judgment. We, therefore, must affirm it.

¶7The 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.

¶8AFFIRMED.

All the Judges concur.
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