Opinion
1 Div. 49.
August 30, 1962.
Appeal from the Circuit Court of Baldwin County, Hubert M. Hall, J.
Wilters Brantley, Bay Minette, for appellant.
Jas. R. Owen, Bay Minette, for appellee.
The appellant, H. R. Hall, brings this appeal from a decree of the Circuit Court in Equity of Baldwin County, overruling his petition for a modification of a former decree of modification growing out of a previous divorce between the parties.
The parties were formerly husband and wife, and the appellee obtained a divorce from appellant in June of 1959, in which decree appellee was awarded custody of their four minor children, two of whom are now of age and married. Appellant brought the present proceedings to be awarded custody of their two minor daughters, one in her teens and the other about 12 years of age. He also sought a reduction in the payments for the support of these minor children. The lower court denied his petition on both counts, and we are at the conclusion that to disturb his findings in such a matter, where he heard the witnesses testify and knows all the persons participating in this unfortunate drama, would be entirely unwarranted.
Several unsavory aspects were brought out at the hearing against both the parties so we will refrain from detailing the evidence. However, there is no evidence that the mother, in whom the custody of the two minor daughters is reposed, is an unfit person. Indeed, some of the appellant's witnesses testified that she was entirely fit. On the other hand, appellant has since remarried and his second wife has three children, and if we were to look into the evidence without indulging the usual presumption in favor of the trial court's findings in such cases, it would seem that to place the custody of the two minor children of the parties in the home where there are already three children might result in considerable disaffection between them. But be that as it may, we are affirming the case under the well-settled principle that where the trial court heard the witnesses testify in open court and was privileged to observe their demeanor, his findings will not be disturbed, unless palpably erroneous, which we can not say. Ala.Dig., Appeal and Error, 1008 (1).
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.