Ex Parte Mullis

• Decision Date: 23 May 2008
• Docket Number: 1061456.
• Citation: 994 So.2d 942
• Parties: Ex parte W. RANDALL Mullis. (In re Lynda Marie Mullis v. W. Randall Mullis).
• Court: Alabama Supreme Court

994 So.2d 942

Ex parte W. RANDALL Mullis (In re Lynda Marie Mullis v. W. Randall Mullis).

1061456.

Supreme Court of Alabama.

May 23, 2008.

Robert W. Waller, Jr., of Wilkins, Bankester, Biles & Wynne, Bay Minette, for petitioner.

Linda L. Howard of Murchison & Howard, L.L.C., Foley, for respondent.

COBB, Chief Justice.

On August 7, 2006, W. Randall Mullis ("the husband") and Lynda Marie Mullis ("the wife") were divorced by the Baldwin Circuit Court. The trial court awarded the husband and the wife joint legal custody of the Mullises' two children, with the husband having physical custody of the children. The husband was ordered to pay the wife $600 per month in periodic alimony, and the wife was ordered to pay the husband $307 per month in child support. The husband was also ordered to pay the wife $2,500 to purchase a vehicle. The husband was awarded possession and ownership of the marital residence, rental property, and business property owned by the couple but was ordered to pay the wife $40,000 as a property settlement.

The wife appealed, arguing that the trial court's property division was inequitable and that the trial court erred by awarding physical custody of the children to the husband. The Court of Civil Appeals affirmed the trial court's custody award, but it reversed the trial court's property division, holding that the division was inequitable. Mullis v. Mullis, 994 So.2d 934 (Ala.Civ.App.2007). The husband then petitioned this court for a writ of certiorari, arguing that the Court of Civil Appeals' reversal of the property division conflicts with this Court's holding in Ex parte Foley, 864 So.2d 1094 (Ala.2003). We granted the husband's petition for the writ of certiorari, and we now affirm the judgment of the Court of Civil Appeals.

The husband and wife were married on June 25, 1995, although they had cohabited since June 1990.¹ On February 18, 2005, the husband filed a complaint for divorce seeking custody of the children. The wife answered and filed a counterclaim for divorce in which she also sought custody of the children. On June 14, 2005, after an hearing held on June 7, 2005, at which evidence was presented ore tenus, the trial court entered an order awarding temporary custody of the children to the husband and awarding the husband temporary exclusive possession of the marital home.

On March 24, 2006, and July 7, 2006, the trial court held hearings on the husband's and the wife's complaints for divorce. As the Court of Civil Appeals summarized:

"The trial court conducted several ore tenus hearings in this case. The testimony and documentary evidence from those hearings revealed the following pertinent facts. At the time of the final hearing in this matter, the [husband] was 43 years old and the [wife] was 53 years old. This is the [wife's] second marriage. The [wife] has four children from her previous marriage, but she does not have custody of those children. The [husband] has one child with special needs from a previous marriage, but he does not have custody of that child.

"The parties separated in November 2003 when the [husband] moved out of the marital home. The [husband] returned to the marital home approximately three weeks after the trial court awarded him temporary custody of the children and possession of the marital home on June 14, 2005. The [husband] testified that when he returned to the house he discovered that the [wife] had left the house in a filthy condition. The [husband] submitted numerous photographs into evidence at trial depicting an unkempt house with trash strewn and clothes piled on the floor. The [wife] denied leaving the house in the condition as depicted in the pictures admitted into evidence. The [wife] claimed that she kept the house clean while she had custody of the children.

"The [husband] testified that he also found marijuana and numerous prescription pills loose in the house when he was cleaning the house. The [husband] explained that he took the pills he found to a pharmacist and learned that the pills were `uppers' of various kinds. The [husband] submitted as evidence a bottle containing various types of pills and what appears to be stems of marijuana the [husband] found while cleaning the marital home.

"The [husband] and the [wife] both admitted to abusing illegal drugs in the past. The record revealed that the [husband] had been convicted in 1997 for possession of marijuana. The [husband] testified that he had previously abused methamphetamine and marijuana but that he had stopped abusing drugs several years before the final hearing in this case. According to the [husband], the [wife] continued to smoke marijuana. The [wife] testified that she and the [husband] used to smoke marijuana together, but she testified that she no longer smokes marijuana. The [wife] denied having a drug problem. The [wife] testified that she had consistently tested negative for drugs on drug screens administered to her after the initial hearings were held in the case.

"The record reveals that the evening before the June 7, 2005, temporary hearing, the [wife] was arrested and charged with possession of a controlled substance. According to her testimony, the [wife] was arrested two blocks from the marital home with Xanax, a prescription drug, in her possession. At the time the [wife] was arrested, she did not have a prescription in her name for Xanax. The [wife] explained that she had had a prescription for the Xanax found in her possession but that her prescription had expired. The [wife] later pleaded guilty to a lesser charge of illegal possession of a prescription drug and was sentenced to two years' probation.

"The [husband] testified that the [wife] did not consistently exercise visitation with the children after he received temporary custody of the children in June 2005. According to the [husband], the [wife] frequently declined to exercise overnight visitation with the children on Wednesdays and missed several scheduled weekend visitations. The [wife] testified that the [husband] made it difficult for her to exercise visitation with the children and, at times, refused to allow her to visit with the children. According to the [wife], she did not consistently exercise overnight visitation with the children on Wednesdays because she thought it best for the children to wake up in their own beds during the school week. The [wife] testified that she missed visitation one weekend in August 2005 because of a mandatory evacuation for Hurricane Katrina.² The [wife] testified that she had not paid child support to the [husband] since the [husband] received temporary custody of the children.

"The [husband] testified that the [wife] had moved four times during the year preceding the final hearing in this case and that he did not know where the [wife] was living at the time of the final hearing. Testimony presented over the course of several ore tenus hearings held in this case revealed that the [wife] had moved several times. At the time of the final hearing, the [wife] was living with her friend, Jill Richburg, and Richburg's two children. The [wife] testified that she paid Richburg $200 a week for rent.

"Testimony revealed that the [wife] worked outside and inside the home during the parties' marriage. The [wife] testified that when she was not employed as a preschool teacher, she worked at home and handled all of the telephone calls for the [husband's] plumbing business. The [wife] testified that she began substitute teaching at a private school in 1994 and worked there for approximately 10 years. The [wife] testified that her employment at the school guaranteed that the children could attend the school without paying tuition. After leaving her employment at the school, the [wife] worked for a child-development center, but she was fired from that job in March 2006. The [wife] testified at the final hearing that she had a full-time job working 40 to 48 hours a week, earning $9 per hour. The [wife] listed her gross monthly income as $1,560 in her CS-41 child-support income affidavit filed in the trial court.

"The [husband] is a self-employed plumber and owns Coastal Plumbing and Heating. The [husband] testified that he charges $78.50 an hour but that he typically performs contract work and is paid a flat rate for his services. The [husband] testified that his gross monthly income, including rental income he receives from commercial property and residential property he owns, is $3,700 a month. The [husband] testified that after he pays expenses associated with the rental properties, his monthly income is reduced to approximately $1,700.

"The parties purchased their marital home in December 2000. The [husband] testified that the marital home had been appraised for $230,000. The [husband] testified that $100,000 of mortgage indebtedness remains on the marital home. The [husband] testified that the monthly mortgage payment on the marital home was $947.

"In addition to the marital home, the parties own real property located on Fort Morgan Road in Gulf Shores (hereinafter `the Fort Morgan property'). The [husband] testified that a commercial building, a rental house, and the shop for his plumbing business all sit on the Fort Morgan property. The [husband] estimated the total value of the Fort Morgan property to be $300,000. The [husband] testified that the Fort Morgan property was subject to mortgage indebtedness of $197,000 and that his monthly mortgage payment on the property was $1,422.44.

"The trial court heard limited testimony regarding other marital assets. The [wife] testified that the [husband] left her a 1995 GMC Jimmy [sport-utility vehicle] to drive after the parties' separation. The [husband] testified that he owned the vehicle. No value was given for the vehicle, but the [wife] testified that the vehicle was inoperable and had been inoperable for some time. At the time of the final hearing, the [husband] had the vehicle in his possession. T...