Fesmire v. Fesmire
| Decision Date | 23 July 1999 |
| Citation | 738 So.2d 1284 |
| Parties | Angelia C. FESMIRE v. Alva C. FESMIRE. |
| Court | Alabama Court of Civil Appeals |
Russell W. Crumbley, Huntsville, for appellant.
John Mark McDaniel and Henri B. McDaniel, Huntsville, for appellee.
Angelia C. Fesmire (the "mother") sued Alva C. Fesmire (the "father") for a divorce. In her complaint, she alleged, among other things, that the father had physically abused her and had threatened her life. She sought custody of their two minor children. The father, in his motion for psychological examination, alleged that the mother had been mentally and physically abusive to both him and to the children. During the trial, the mother testified concerning alleged acts of domestic abuse by the father. The father denied the mother's allegations. The trial court awarded sole custody of the minor children to the father. The mother appeals, arguing that the trial court erred by awarding custody to the father. Specifically, she argues that the trial court erred by not applying the provisions of the Custody and Domestic or Family Abuse Act, codified in Ala.Code 1975 at §§ 30-3-130 through -136. We reverse and remand.
Although the issue of domestic abuse was brought up by both parties in various pleadings and was clearly made an issue at trial, the court made no express finding as to whether domestic abuse had occurred. In Harbert v. Harbert, 721 So.2d 224, 226 (Ala.Civ.App.1998), this court directed that, on remand, a trial court make a finding as to whether domestic abuse had occurred, so that this court could be certain that the Custody and Domestic or Family Abuse Act had been applied. The statements in Harbert regarding that point are arguably dicta because in that case this court reversed the judgment for another reason. However, our decision to instruct the trial court on remand to make a finding was influenced by this court's 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.1 Because 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, we take this opportunity to hold that it does.
The Custody and Domestic or Family Abuse Act reads as follows:
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Ex parte Fann
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