Gonzalez v. Gonzalez

• Decision Date: 02 July 2004
• Citation: 908 So.2d 255
• Parties: Susan L. GONZALEZ v. Richard P. GONZALEZ. Richard P. Gonzalez v. Susan L. Gonzalez.
• Court: Alabama Court of Civil Appeals

908 So.2d 255

Susan L. GONZALEZ v. Richard P. GONZALEZ.

Richard P. Gonzalez v. Susan L. Gonzalez.

2020868.

Court of Civil Appeals of Alabama.

July 2, 2004.

Rehearing Denied September 24, 2004.

Certiorari Quashed March 18, 2005.

Charles A. Dodson, Jr., and Joseph D. Steadman of Sims, Graddick & Dodson, P.C., Mobile, for appellant/cross-appellee Susan L. Gonzalez.

Claude D. Boone and Gregory M. Zarzaur of Claude D. Boone, P.C., Mobile, for appellee/cross-appellant Richard P. Gonzalez.

Alabama Supreme Court 1040052.

YATES, Presiding Judge.

Susan L. Gonzalez ("the mother") appeals from a judgment entered by the Mobile Circuit Court that, among other things, divorced her from Richard P. Gonzalez ("the father") and awarded the father custody of the parties' children. The father cross-appeals, arguing that the trial court erred in awarding the mother periodic alimony and an attorney fee. He also argues that the trial court erred in not ordering the mother to pay child support.

The parties were married in Illinois on February 10, 1990. At that time, the mother was a registered nurse and the father was a trauma surgeon. Two sons and a daughter were born of the marriage. At the time of the divorce, the older son was 12 years old, the younger son was 8, and the daughter was 7. The parties lived in Illinois until 1999, when they moved to Mobile.

The mother testified that the parties jointly decided in 1990 that she should leave the nursing profession to care for the children. The father is the director of trauma surgery at the University of South Alabama; he earns $290,000 per year. He testified that it was not a joint decision that the mother stop working and that he had asked her to return to work. The father testified that the mother could earn $45,000 per year as a nurse.

The mother testified that the father had a tendency to go out drinking after work in Illinois and that this behavior continued when the parties moved to Mobile. She testified that on their wedding night the father was so intoxicated that they were not intimate. The mother stated that a few days before her delivery of the older son she suffered from preeclampsia and an infection with a fever and a cough. She stated that she telephoned the father, who was at a Hooter's restaurant, to ask him if he would pick up some medication for her. However, she testified that the father did not return home that night and never answered his pager because he had passed out in his automobile. In 1995, the mother had to take the younger son, who was an infant at the time, to the emergency room because he had a viral infection. She telephoned the father, who was at a bar, and he swore at her and refused to meet her at the emergency room. The father did not return home that night. In 1997, the father was arrested in Illinois and charged with driving under the influence ("DUI"). The mother testified that the father has befriended Jim Walker, who owns a bar in Mobile, and that the father frequents Walker's bar. The mother testified that she believed the father was unfaithful to her with a doctor who was completing her residency under the father's direction. She stated that she received telephone calls from a hospital employee telling her of the father's affair. The mother testified that at the time of the father's alleged affair, she was pregnant with the younger son and her obstetrician discovered that she was infected with chlamydia, a sexually transmitted disease. The father denied being unfaithful.

The mother stated that she was very involved in all the children's activities. She testified that the older son plays soccer and baseball and that he was a member of an elite soccer team that traveled to out-of-town matches. The mother was the manager of the son's team and helped to coordinate many aspects of the team's activities. She stated that she would take all three children to the soccer matches. The mother testified that the father rarely attended the soccer matches.

The mother stated that she took care of the children's educational needs. She testified that she was a room mother at the children's school, helping with parties for the children's classes and relieving the teachers on their lunch hour. The mother stated that she took care of the children's health needs. She testified that she took care of the children when they were sick and that she took the children to their doctor and dentist appointments. The mother stated that some of the children had allergic reactions to certain medication but that the father was confused as to which ones had the allergies when he took them on a trip to Baton Rouge after she filed for a divorce.

The mother testified that in May 2001 Patrick Wittenbrink, a college baseball player, moved into the family home. She stated that Wittenbrink paid her $300 per month in rent, which she deposited in the couple's joint checking account. She said that Wittenbrink helped the older son with baseball and that when Wittenbrink moved in she was planning on returning to school and believed that she would need help with the children.

The mother testified that the father was verbally and physically abusive. The mother stated that on one occasion a few years before the trial in this matter, the father had pushed the mother against a door and choked her because a family pet had urinated on his exercise mat. The mother testified that in April 2002 the parties were on a trip to New Orleans for one of the older son's soccer matches. She stated that the father had been drinking and that the father called her an obscene name several times while the children were awake in the next room. The mother stated that the father shoved her against the door twice, leaving a bruise to her sternum. The father admitted being drunk and calling the mother the obscene name. The mother stated that the incident in New Orleans "was the straw that broke the camel's back," prompting her to file for a divorce in May 2002.

The mother admitted that after she had filed her petition for a divorce, she had a three-month affair with Craig Ginsberg, the older son's soccer coach. The mother testified that at the time of trial the affair was over. The father presented evidence that the mother had spent 107 hours on the telephone with Ginsberg from October 2001 to December 2002, with the time dramatically increasing near the time she filed for a divorce.

Patty Norris, a teacher at the private school attended by the children, testified that she taught the younger son and the daughter. She also knew the older son because she has a child in the same grade at the school. She stated that she had been a teacher for 25 years and that the mother was one of the best room mothers that she had ever had. She said that the older son is well-rounded, sweet, and very athletic. She testified that the younger son is quiet, loving, sweet, and kind and that the daughter is a "fun loving, wonderful little girl." Norris testified that she has seen the mother interact with the children and that the mother is very close to the children. She said that the school does not have a parent-teacher association but that each teacher has parent-teacher conferences. She stated that the mother attended all of the parent-teacher conferences concerning the younger son and daughter and that the father had never attended the conferences.

Rachel Frederick, also a teacher at the children's school, testified that she was the daughter's teacher at the time of trial. She said that the daughter is well-adjusted, a leader in the classroom, and that she wished she had a "room full" of children like the daughter. She said that she sees the mother quite often at the school because the mother relieves the teachers at lunch time. Frederick testified that she had met with the father only once after he telephoned in October 2002 requesting a conference. She stated that in talking with the father and observing him, he did not appear sincere and that he stated that he was trying to get custody of the children.

Daniel Koch, a clinical psychologist, testified on behalf of the mother. As part of his evaluation, Dr. Koch interviewed the family. He also administered several psychological tests to the mother and the children. The father made three appointments to participate in the psychological testing, but he subsequently canceled each appointment. Dr. Koch testified that the mother should have custody of the children. He stated that the mother had taken care of the children's daily needs.

Logan Cowart, who has a son on the older son's soccer team, testified that the mother generally stays to watch soccer practice and that one day per week the mother helps to train the soccer players by running with them as a group. Cowart testified that occasionally one of the soccer coaches would stay in the parents' rooms during the out-of-town trips because the coaches "were young and couldn't afford it" and because it helped keep the costs down for the soccer team if the coaches did not have to be reimbursed for a room. Cowart testified that, based on her observations of the mother for the last four years, she thought the mother was a good mother.

The older son testified that he loved both the mother and the father. He stated the mother has been the person who has taken care of him over the past 12 years. He said he wanted to live with the mother. He stated that either the mother or father would fix breakfast for him, but that recently the father had fixed breakfast. He also testified that since the mother had filed for a divorce the father bought the groceries.

The older son stated that he had recently gone to church with his father and that in front of the church the father grabbed him and said, "Stop it, because we're in the—right in front of a fucking church." The older son testified that when a soccer coach would stay in a hotel with the mother and the children, they all stayed in a suite that had more than one bedroom and...