Alexander v. Alexander

• Decision Date: 30 December 2010
• Docket Number: 2090065.
• Citation: 65 So.3d 958
• Parties: Wendell Keith ALEXANDERv.Charlene J. ALEXANDER.
• Court: Alabama Court of Civil Appeals

65 So.3d 958

Wendell Keith ALEXANDER

v.Charlene J. ALEXANDER.

2090065.

Court of Civil Appeals of Alabama.

Dec. 30, 2010.

Lisa M. Ivey, Jasper, for appellant.Hugh Beaird, Jasper, for appellee.PITTMAN, Judge.

Wendell Keith Alexander (“the husband”) appeals from a judgment divorcing him from Charlene J. Alexander (“the wife”) that, among other things, awarded custody of the parties' only child to the wife, divided the marital property, and awarded the wife an attorney's fee in the amount of $7,500.

At the time the parties separated in September 2007, they had been married for over 18 years. In December 2007, the husband filed a complaint seeking, among other things, a divorce from the wife and joint custody of the parties' minor child. The wife answered the husband's complaint and filed a counterclaim seeking sole custody of the child, periodic alimony, child support, and attorney's fees. Subsequently, the wife filed a motion seeking pendente lite child support and alimony. In June 2008, the trial court awarded the wife pendente lite child support and ordered the husband to make the wife's motor-vehicle-loan payments and to maintain automobile insurance on the wife's vehicle as temporary alimony. During the pendency of the divorce action, the marital residence was sold and the proceeds of $3,033 plus $1,424 in escrow funds were paid into the court for later distribution.

In February 2009, the trial court conducted an ore tenus proceeding during which the parties and the husband's sister testified. The husband testified that he was almost 46 years old,¹ that he had served throughout the marriage in the United States Coast Guard, and that he had retired with 20 years of service in September 2008; he was receiving retirement benefits in the amount of $1,450 per month. At trial, the husband stated that he was employed by G–2, Inc., as a security officer and that his biweekly salary was $1,922. Although his CS–41 child-support-obligation income statement/affidavit form indicated that he earned a gross monthly income of $5,294, the husband testified that his monthly expenses of $4,388.75 left him less than $1,000 in undedicated monthly funds. The husband also stated that the parties were indebted on a camper that had been sold during the pendency of the divorce action for less than the amount of an outstanding loan secured by that vehicle; he testified that he had been making monthly payments of $169.75 toward that debt. He noted that the parties had consolidated all of their marital debts into one loan for which he was making monthly payments of $516.

The husband also testified that, after the parties had sold the marital residence, the parties' primary remaining asset was the husband's individual retirement account that contained $743 from the 2006 sale of the parties' previous marital residence. He stated that the parties owned two motor vehicles: a 2004 Dodge truck primarily used by the husband (which had an outstanding loan of $11,000 with monthly payments of $500) and a 2004 GMC Envoy used primarily by the wife (which was encumbered by debt in the amount of $14,000 with monthly payments of $656). Finally, the husband stated that he had acquired a $450,000 life-insurance policy through the military under which the wife and the child were listed as beneficiaries; he testified that he intended to maintain that policy to benefit the child.

The husband testified that, because he had served 20 years in the Coast Guard, had the parties had been married 20 years the wife would have been entitled to one full year of medical benefits from the military following the divorce. He asked that the judgment of divorce not be entered until after April 29, 2009 (the parties' 20th wedding anniversary), so that the wife could receive those benefits. The husband testified that he was willing to use the net proceeds of the sale of the marital residence to pay for orthodontic work and braces that were needed by the child.

The wife testified that she had been the primary caregiver for the child throughout the marriage; she also stated that because the husband had been deployed and absent for much of the marriage, she had handled the parties' day-to-day financial dealings. At the time of trial, the wife was working for a local hotel as a front-desk clerk earning approximately $1,069 per month; she also worked as a substitute teacher earning approximately $235 per month. The wife also testified that she suffered from neurofibromatosis, a disorder that disrupts cell growth in the nervous system and causes tumors, usually benign, to form on nerve tissue throughout the body; the husband confirmed that he had known about the wife's condition before they had married. The wife testified that she had not been able to find an individual health-insurance policy that she could obtain following the divorce and that it would cost approximately $190 per month to maintain her coverage through the husband's military medical-insurance policy.

On March 12, 2009, the trial court conducted an in camera interview of the child; that interview was transcribed and included in the appellate record. Subsequently, on June 5, 2009, the trial court entered a judgment divorcing the parties based upon “a complete incompatibility of temperament and irretrievable breakdown of the marriage.” ² In that judgment, the trial court awarded the wife “exclusive” physical and legal custody of the child, awarded the husband extended alternating weekend visitation with the child, and ordered the husband to pay $636 in monthly child support. Additionally, the husband was ordered to pay monthly periodic alimony in the amount of $1,000 to the wife, and he was ordered to obtain life-insurance policies to secure the payment of both those monthly obligations. The husband was awarded one of the parties' two motor vehicles, and the wife was awarded the other motor vehicle; however, the husband was ordered to retire the debt associated with the wife's vehicle and to maintain insurance on that vehicle for five years. The judgment also instructed the husband to maintain medical-insurance coverage for the wife for five years, to pay for her uncovered medical expenses for five years, and to pay $7,500 toward the wife's attorney's fees. Following the denial of the husband's postjudgment motion by operation of law, see Rule 59.1, Ala. R. Civ. P., the husband timely filed a notice of appeal.

The husband asserts nine discrete issues in his appellate brief, which can be combined and summarized as contentions that the trial court erred procedurally in failing to conduct a hearing on the husband's postjudgment motion; that the trial court erred in its child-custody, child-visitation, and child-support awards; that the trial court erred in requiring the husband to secure his child-support and periodic-alimony awards by maintaining life-insurance policies; that the trial court erred in ordering the husband to provide health-insurance coverage and to pay for uncovered medical expenses for the wife for five years; and that the trial court erred in awarding the wife periodic alimony and an attorney's fee. We will address the husband's substantive arguments first.

The husband asserts that the trial court's award to the wife of “exclusive care, custody, and control of the parties' minor child” violates the statutory section governing child-custody awards. See Ala.Code 1975, § 30–3–151. He also contends that the trial court improperly failed to award joint custody as contemplated by § 30–3–152(a), Ala.Code 1975. When appellate courts review a 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.’ ” Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). “This presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility.... ‘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).” Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

The husband relies on Cleveland v. Cleveland, 18 So.3d 950 (Ala.Civ.App.2009), to support his contention that the trial court's failure to award joint custody of the child to the parties constitutes reversible error, but his reliance on that decision is misplaced. In Cleveland, this court specifically held that “the automatic custody-modification clause” at issue, which changed physical custody of one child based on future contingencies, was improper and due to be reversed. Id. at 952. In Cleveland, this court did not determine that the trial court had erred in awarding sole physical custody of the other child in that case to the mother. This court remanded the case to the trial court for a determination as to what type of custody would be in the first child's best interests: sole, joint, or shared. Id. at 956.

In this case, however, the trial court's judgment stated the following regarding custody:

“The Court finds that either the husband or the wife is a fit and proper person to have the care, custody, and control of their minor child.... However, in consideration of this court's mandate to decide custody based on what is in the child's best interest, the court finds that the child's best interests are served by awarding her exclusive care, custody and control to the wife....”

Unlike in Cleveland, where the parties had jointly worked out a shared or joint-custody arrangement pendente lite, the parties in this case had proved to be unable to consensually reach such an agreement, and the trial court had been required to set a specific visitation schedule and to supervise it throughout the pendency of the divorce action. In...