A.B v. J.B

Decision Date18 December 2009
Docket Number2080078.
Citation40 So.3d 723
PartiesA.B.v.J.B.
CourtAlabama Court of Civil Appeals

COPYRIGHT MATERIAL OMITTED

Kelly Tipton Lee, Elmore, for appellant.

Submitted on appellant's brief only.

PER CURIAM.

A.B. (“the wife”) appeals from a judgment of the Montgomery Circuit Court divorcing her from J.B. (“the husband”), awarding primary physical custody of the parties' minor child, J.S.B., to the husband, awarding the wife visitation with the child, ordering the wife to pay child support, assessing a child-support arrearage against the wife, and requiring the wife to pay one-half of the costs of health insurance for the child and one-half of any extracurricular expenses for the child. The trial court also ordered the parties to equally share a debt owed to the Internal Revenue Service (“the IRS”) and ordered the wife to pay one-half of the husband's attorney's fees. We affirm in part and reverse in part.

Procedural Background

On November 29, 2007, the wife filed a complaint in the Elmore Circuit Court seeking a divorce from the husband. The wife alleged that one minor child, J.S.B., had been born to the parties on December 22, 2003. The husband answered the complaint, asserting that not one but two children had been born to the parties: D.B., who was born in August 1997 during the parties' common-law marriage, and J.S.B., who was born to the parties after a ceremonial marriage. The husband counterclaimed for custody of the children, visitation, child support, and attorney's fees. The husband also sought a change of venue to the Montgomery Circuit Court, asserting that he and the wife had lived in Montgomery County during their marriage; the Elmore Circuit Court granted that motion.

After the case was transferred to the Montgomery Circuit Court (“the trial court), the parties stipulated that the oldest child, D.B., was not the husband's biological child. The parties also stipulated that whomever received custody of J.S.B. would be entitled to claim her as a dependent for tax purposes.

On August 5, 2008, after a hearing, the trial court entered a judgment divorcing the parties, awarding joint legal custody of J.S.B. to both parties but awarding primary physical custody to the husband, and ordering the wife to pay $551 each month in child support. The trial court also established a child-support arrearage in the amount of $5,000 to be paid at the rate of an additional $100 per month; ordered the wife to pay an additional amount to the husband representing one-half of the cost of health insurance for the child; ordered the parties to share equally in the costs of the child's extracurricular and sports-related activities; and ordered the parties to share equally the costs of any debts owed to the IRS. Finally, the trial court ordered the wife to pay the husband's attorney's fees.

The mother timely filed, pursuant to Rule 59, Ala. R. Civ. P., a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. On that same date, the mother filed a motion seeking the recusal of the trial judge. On September 9, 2008, after oral arguments, the trial court denied the wife's postjudgment motion; it also entered an order granting her motion to recuse.1 On September 10, 2008, the husband filed a response opposing the wife's postjudgment motion; in that motion, the husband's attorney submitted documentation in support of his attorney's fees.

On September 17, 2008, the wife filed a Motion to Reconsider.” On September 20, 2008, the wife appealed.

Background

At the hearing in this matter, at which ore tenus evidence was received, the wife testified that she and the husband had married on February 11, 1998. According to the wife, she and the husband had separated in November 2006 because they could not get along; the wife attributed their marital problems to money issues and the husband's substance-abuse issues. According to the wife, the husband had sought treatment for his substance-abuse problem at an inpatient treatment facility. The wife also admitted that she had attempted to have the husband committed to a mental-health treatment facility during November 2006, around the time of the parties' separation, because of the husband's suicidal and threatening gestures. The wife's petition for commitment was dismissed.

At the hearing, the wife invoked her Fifth Amendment right when questioned as to whether she had engaged in an adulterous affair during the marriage. The wife also invoked her Fifth Amendment right when asked if, while in the presence of her daughters, she had cohabitated with a man who was still married to another woman. The wife, however, admitted that certain incriminating photographs of herself and her paramour, Timothy V., had been posted on her “MySpace” Internet account in 2007, while the parties were still legally married but were separated. The wife testified, however, that her account had been “hacked.”

The wife testified that, upon the parties' separation, she and the children had remained in the marital residence and the husband had initially moved out. Apparently, the husband later moved back into the marital residence and the wife moved out of that residence; the children remained in the marital residence with the husband. After leaving the marital residence, the wife lived at various addresses, moving in with different female friends. The wife eventually moved into a house in Elmore County. D.B. subsequently moved in with the wife; at the time of the hearing, D.B. continued to live with the wife.

The wife testified that she and the husband had agreed that they would alternate three-month custodial periods with J.S.B. According to the wife, J.S.B. had then lived with the wife for a three-month period and the wife had then returned J.S.B. to the husband; the wife testified that the husband had not returned J.S.B. to the wife after his three-month custodial period. The wife acknowledged that, at the time of the hearing, J.S.B. had been residing with the husband for 19 months. The wife admitted that, during that 19-month period, she had not provided any financial support to J.S.B. The wife claimed that the husband occasionally had refused to allow the wife to visit with J.S.B. The wife testified that D.B. and J.S.B. saw each other “every other weekend” and that they had a “normal sister relationship.” According to the wife, both D.B. and J.S.B. were insured through Medicaid.

The wife acknowledged that she and the husband had been living together when D.B. was born and that they had initially told D.B. that the husband was her father. By the time of the hearing, however, D.B. had been told that the husband was not her father. The wife had never sought to collect child support from D.B.'s biological father.

At the time of the hearing, the wife had been employed for approximately one year; she was working full-time and her gross monthly income was $1,833. She explained that she had not worked during most of the marriage. The wife testified that the parties owned no real property and no personal property. According to the wife, the parties owed a debt to the IRS. The wife also testified that any debt the parties might have owed to V.M. and B.M., J.S.B.'s paternal grandmother and paternal stepgrandfather, had been satisfied through the conveyance of personal property; she introduced into evidence a document purporting to attest to the satisfaction of that debt.

The wife testified that she had been admitted to a mental-health facility in 2006 for the treatment of depression; she acknowledged that she had suffered from depression in the past, but she denied that her depression required medication. While at the mental-health facility, the wife was diagnosed with bipolar disorder; she testified, however, that she had been misdiagnosed. She denied taking any medications at the time of the hearing.

The husband testified that, at the time of the hearing, he and J.S.B. were living with the paternal grandmother and the paternal stepgrandfather. According to the husband, he was employed full-time with a cable company and he earned approximately $1,850 per month; he had been employed with that company for two months at the time of the hearing. According to the husband, he incurred $500 per month for child care. He had recently obtained health insurance through his employer, covering J.S.B. at a cost of approximately $264 per month.

On cross-examination, the husband admitted that he was certified as a plumber and that previously he had earned as much as $24 an hour. The husband testified that he was no longer able to work as a plumber because of certain medical conditions. The husband testified that he had been diagnosed with attention deficit/hyperactivity disorder and that he had two ruptured disks in his back. For those conditions, he had been prescribed and was taking Adderall, a stimulant, and Lorcet, a pain medication. The husband also admitted that, on occasion, he took Xanax, an antianxiety medication, and that he had recently taken Flexeril, a muscle relaxer, and Cymbalta, an antidepressant.

The husband testified that, during the parties' marriage, he had inadvertently discovered the wife having sexual relations with Timothy V., the husband's best friend, in the marital home. The husband testified that he had subsequently admitted himself to a mental-health facility for three days. The husband admitted that he had attempted suicide on more than one occasion and that one of those attempts had occurred around the time of the parties' separation, in November 2006. According to the husband, he subsequently had been held in the same mental-health facility in late November 2006, also around the time of the parties' separation, after the wife had filed a petition to have him committed. A guardian ad litem had been appointed for the husband at that time, and he had remained at the facility for six to seven days. After a commitment hearing, the wife's petition was dismissed.

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