Opinion
1 Div. 415.
January 20, 1927.
Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.
Foster K. Hale, Jr., of Mobile, for appellant.
The children should not be taken from the wife because of some misconduct on her part four years ago with a man whom she has since married; the wife having cared for and supported the children without aid or assistance from the father of the children.
Harry T. Smith Caffey, of Mobile, for appellee.
The burden of proof rested on the appellant. The custody of the children having been awarded to the father at a time when he was a fit custodian and the mother was not, their custody should not now be taken from him merely because the mother has since married her partner in adultery. 29 Cyc. 1588, 1603; Ex parte Rickerson, 203 Ala. 305, 82 So. 769; Montgomery v. Hughes, 4 Ala. App. 245, 58 So. 113; Cook v. Echols, 16 Ala. App. 606, 80 So. 680; McDonald v. Watkins, 18 Ala. App. 131, 89 So. 306; Black v. Montgomery, 17 Ala. App. 245, 84 So. 308.
The decree of divorcement, granted to Joseph Johnson in December, 1924, was a conclusive adjudication between the parties of the wife's marital misconduct, and of her relative unfitness to have the custody of the children of the marriage, who are now 7 and 6 years old, respectively. Indeed, the wife's adulterous relationship with another is not denied, but it is conceived that her subsequent marriage to her paramour, and her proper living since that time, have so changed the circumstances under which the original decree of custody was granted as to now justify and require a reversal of that decree and a new award of custody to her.
On the issues presented, the burden of proof rested heavily on the appellant. The trial court saw and observed both parties, and heard their testimony, and that of their witnesses, viva voce. This is peculiarly a case where the conclusions of the trial court should not be disturbed unless they are palpably wrong.
We have examined the evidence with due care, and we do not find anything which would justify a reversal of the decree, which will accordingly be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.