Ex parte Fann

• Decision Date: 13 July 2001
• Parties: Ex parte Debbie D. FANN. (Re Debbie D. Fann v. Robert P. Fann).
• Court: Alabama Supreme Court

810 So.2d 631

Ex parte Debbie D. FANN.

(Re Debbie D. Fann v. Robert P. Fann).

1992227.

Supreme Court of Alabama.

July 13, 2001.

John F. Kizer, Jr., and William H. Benson III of John F. Kizer, Jr., L.L.C., Birmingham, for petitioner.

Jim Pino of Jim Pino & Associates, P.C., Pelham, for respondent.

MOORE, Chief Justice.

Debbie D. Fann (the "mother") appealed to the Court of Civil Appeals from a divorce judgment in which the trial court awarded custody of the parties' children to her former husband, Robert P. Fann (the "father"). On May 26, 2000, the Court of Civil Appeals affirmed the trial court's judgment, without an opinion. Fann v. Fann (No. 2990055), 795 So.2d 849 (Ala. Civ.App.20000) (table). We granted the mother's petition for certiorari review. We affirm.

I.

The mother and father married in December 1991. Their marriage produced two children, one in 1992 and the other in 1993. In 1998, the husband filed a divorce complaint in the Shelby Circuit Court. The mother filed a counterclaim, also asking for a divorce. Each party requested custody of the children. During the pendency of the divorce proceedings, the mother, alleging that the father had abused her, moved for a temporary restraining order against him. In response, the trial court appointed a special master, G. Daniel Reeves, to hear and investigate the allegations against the father. After conducting a pendente lite hearing on the matter, the special master issued a report stating, in pertinent part: "The court did not find sufficient evidence to indicate that the [father] was abusive to the [mother]." On January 7, 1999, the trial court adopted the special master's findings.

Before the trial of this divorce action, Reeves was elected as a judge of the Shelby Circuit Court; the Fanns' divorce case was subsequently assigned to Judge Reeves. At trial, the mother again alleged that the father had abused her during their marriage. During cross-examination, she apparently added another claim of abuse, based on an incident she said had occurred in or after January 1999, a date subsequent to the conclusion of the pendente lite hearing. The father, at trial, specifically denied at least some of the allegations and testified, at length, that the mother had frequently abused alcohol; as to that testimony, he presented corroborating evidence. In July 1999, the trial court entered a judgment divorcing the parties; the judgment awarded the care and custody of the children to the father, with visitation rights to the mother. The court made no specific findings regarding the mother's renewed allegations of abuse.

In her certiorari petition, the mother argued that the Court of Civil Appeals' affirmance of the trial court's decision conflicts with its prior ruling in Fesmire v. Fesmire, 738 So.2d 1284 (Ala.Civ.App. 1999). In Fesmire, the Court of Civil Appeals stated that if allegations of domestic abuse have been made, then "the trial court must, on the basis of the evidence presented, make a finding on the record as to whether domestic abuse occurred and then ... it must apply the remaining provisions of the Custody and Domestic or Family Abuse Act." 738 So.2d at 1288 (emphasis added). The Court of Civil Appeals ruled that the failure to make such a finding is reversible error. Id. The mother argues that because the trial court failed to make this specific finding in its final divorce judgment, that judgment must be reversed.

II.

Before we begin our analysis, we first consider the applicable standards of review. When this Court reviews a trial court's child-custody determination that was based upon evidence presented ore tenus, we presume the trial court's decision is correct: "`A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....'" Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App. 1993) (citations omitted). This presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. "In child custody cases especially, the perception of an attentive trial judge is of great importance." Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ. App.1981). In regard to custody determinations, this Court has also stated: "It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous." Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).

Because we are called upon to review a trial court's judgment in light of the Custody and Domestic or Family Abuse Act (the "Act"), the following standard is also germane:

"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction...."

IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). We begin our review with these established standards in mind.

III.

In 1999, pursuant to the Act, and mindful of the serious nature of domestic and family abuse, the Court of Civil Appeals began requiring that a trial court hearing a child-custody case make a specific finding related to a claim of abuse. See Fesmire v. Fesmire, supra. Since that time, the Court of Civil Appeals has consistently reversed trial courts' custody determinations for a failure to make such a finding. See, e.g., Jordan v. Jordan, 802 So.2d 238 (Ala.Civ.App.2001)

; King v. King, 794 So.2d 1165 (Ala.Civ.App.2001).

In crafting the Fesmire "requirement," the Court of Civil Appeals stated that it was predicating its ruling upon the language of the Act¹ and upon its prior ruling in Harbert v. Harbert, 721 So.2d 224, 226 (Ala.Civ.App.1998).² However, the Act contains no provision requiring a trial court to make an express finding as to whether abuse has occurred, a fact Fesmire concedes: "[T]he [Act] does not directly mandate that the trial court make a finding regarding allegations of domestic abuse...." 738 So.2d at 1287. Despite this concession, the Court of Civil Appeals reasoned that "the import of the [Act] allows for such an interpretation." 738 So.2d at 1287. We conclude that this "interpretation" is incorrect.

This Court has repeatedly held that a statute is to be construed by the plain meaning of its words:

"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction...."

IMED Corp., supra, 602 So.2d at 346. As Justice Houston has stated: "[T]his Court must interpret [a] statute strictly according to the language of that statute ..., and to do otherwise would `turn this Court into a legislative body....'" Johnson v. Price, 743 So.2d 436, 438 (Ala.1999) (citations omitted).

Because the Act provides no basis for Fesmire's "requirement," we turn our review to Harbert, in which the Court of Civil Appeals remanded the case for the trial court to determine whether domestic abuse had occurred. 721 So.2d 224. A review of Harbert demonstrates that the Court of Civil Appeals' reliance upon that case is misplaced. In fact, the Fesmire opinion recognized that "Harbert did not hold that the Custody and Domestic or Family Abuse Act requires the trial court to make a finding as to whether domestic abuse has occurred." 738 So.2d at 1286. Rather, the Court of Civil Appeals' "decision [in Harbert] to instruct the trial court on remand to make a finding was influenced by [a] concern that an appellate court could not be certain that the trial court had applied the statute without some indication that the trial court made a finding about the domestic-abuse issue." 738 So.2d at 1285-86.

As admitted by the Court of Civil Appeals, Fesmire's "requirement" finds its authorization in the practicality of appellate review. "[S]uch an interpretation is necessary for this court to adequately review the application of the statute." Fesmire, 738 So.2d at 1287. While the practicality of appellate review is a legitimate concern, it does not here justify the judicial creation of an unsanctioned requirement.

Furthermore, to impose the harsh results—an automatic reversal—that has been occurring since Fesmire was decided seems unwarranted. Clearly, no provision in the Act calls for the wholesale reversal of child-custody decisions, even if it is presumed that the Act calls for specific findings. In A.S. v. G.T., 794 So.2d 1167 (Ala. Civ.App.2001), the trial court, addressing the mother's allegations of abuse, stated: "I am totally convinced that [the mother] stays up all hours of the night writing and generating papers, because I get to look at the papers, though I do not find much substance to them." Nevertheless, the Court of Civil Appeals reversed the trial court's award of child custody to the father and remanded the case to the trial court "to enter a judgment containing a finding as to whether the alleged domestic or family abuse occurred." 794 So.2d at 1169. The Court of Civil Appeals stated: "The failure to make such a finding [as to whether abuse occurred] is reversible error." 794 So.2d at 1169. This result is neither authorized nor, as demonstrated hereafter, universally warranted.

For example, in Howard v. Howard, 796 So.2d 373 (Ala.Civ.App.2001), the Court of Civil Appeals held that the failure to make written...