DuBois v. DuBois

• Citation: 714 So.2d 308
• Parties: Robert K. DuBOIS v. Karen A. DuBOIS. Karen A. DuBOIS v. Robert K. DuBOIS. 2961234.
• Decision Date: 13 March 1998
• Court: Alabama Court of Civil Appeals

Page 308

714 So.2d 308

Robert K. DuBOIS v. Karen A. DuBOIS.

Karen A. DuBOIS v. Robert K. DuBOIS.

2961234.

Court of Civil Appeals of Alabama.

March 13, 1998.

Susan C. Conlon, Huntsville, for appellant/cross appellee Robert K. DuBois.

Dinah P. Rhodes and William K. Bell of Lammons, Bell & Rhodes, Huntsville, for appellee/cross appellant Karen A. DuBois.

MONROE, Judge.

The parties were married on September 2, 1978, and were divorced on June 13, 1997. A son and a daughter were born of the marriage; they were 15 and 13 years old, respectively, when the judgment of divorce was entered. Both parties appeal from the divorce judgment and raise several issues.

At the time of trial, the husband was 53 years old and the wife was 43 years old. The husband, who has both undergraduate and graduate degrees, earns approximately $118,000 a year as an engineer employed by the Department of the Army. The wife, who attended a community college for two years but does not have a college degree, has not been employed outside the home since the birth of their older child.

I. Child Custody and Visitation

The trial court awarded the wife custody of the parties' two children. The husband was awarded standard visitation rights, except that his visitation schedule also includes every weekend from 6:00 p.m. Friday to 6:00 p.m. Sunday. The trial court ordered the husband to pay $1,418 in monthly child support and to maintain health insurance coverage for the children. The husband and wife were each ordered to pay one-half of the children's medical expenses not paid by insurance.

The husband argues that the trial court abused its discretion in awarding the wife custody of the two minor children. He argues that the trial court should have awarded the parties joint custody. This court has held:

"Our standard of review is very limited in cases where the evidence is presented ore tenus. 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, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow."

Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted).

The husband contends that joint custody is presumed to be in the best interest of the children and that the trial court did not state its reasons for not awarding joint custody. Section § 30-3-152(c), Ala.Code 1975, provides that it is presumed that joint custody is in the best interest of the child when both parents request joint custody, and that, in such cases, joint custody shall be awarded unless the court makes specific findings as to why joint custody is not granted. In this case, the husband requested joint custody and the wife requested sole custody. Thus, there is no presumption that joint custody is in the best interest of the children. The trial testimony shows that both parties are good parents. However, the wife has had the primary responsibility for caring for the children since their births. In addition, it appears, from a reading of the trial transcript, that the parties do not have an amicable relationship and that it is unlikely that they will cooperate and make joint decisions. Thus, we cannot say that the trial court abused its discretion or was plainly and palpably wrong in awarding the wife custody of the children.

The wife argues that the trial court abused its discretion in its award of visitation to the husband. Specifically, she contends that it is unfair for him to have visitation every weekend. The primary consideration in setting visitation rights is the best interest of the child. Speakman v. Speakman, 627 So.2d 963 (Ala.Civ.App.1993). Each child visitation case must be decided on its own facts and circumstances. Id.; Gilchrist v. Gilchrist, 660 So.2d 1005 (Ala.Civ.App.1995); Cohn v. Cohn, 658 So.2d 479 (Ala.Civ.App.1994); French v. Lyford, 636 So.2d 437 (Ala.Civ.App.1994); Anonymous v. Anonymous, 620 So.2d 43 (Ala.Civ.App.1993); and Fanning v. Fanning, 504 So.2d 737 (Ala.Civ.App.1987). The wife testified that she makes an effort to spend time with the children on weekends. In addition, the wife testified that she was involved in a church and regularly attended church with her children and that the husband rarely attended church. The husband testified that he wanted more than standard visitation rights. However, the wife argues that she is prevented from spending any "quality time" with the children because the husband has visitation every weekend. We agree. Considering that the wife plans on finding a job to support herself, it is clear that the visitation schedule, which effectively provides her visitation only on school nights, will not permit the children to spend any quality time with their mother. Both parents are good parents, and it is in the children's best interest to spend time with both of them. Because it is not in the best interest of the children to be prevented from spending any quality time with their mother, we hold that the trial court abused its discretion in awarding the husband visitation every weekend. Therefore, the visitation portion of the divorce judgment is reversed. On remand, the trial court is instructed to establish a visitation schedule that allows the children to spend weekends with each parent.

II. Division of Property and Alimony

The trial court awarded the wife the marital home, valued at approximately $400,000, and provided that she would be responsible for a $210,000 indebtedness remaining on it. The court also awarded her certain household goods, furniture, and furnishings; a 1978 Mercedes automobile; the $6,475 the parties received in 1996 state and federal tax refund checks; her IRA, valued at approximately $5,000; the parties...