Hyche v. Hyche

• Decision Date: 02 December 2016
• Docket Number: 2150774.
• Citation: 226 So.3d 673
• Parties: Lauren Alyse HYCHE v. Shanon Cruz HYCHE
• Court: Alabama Court of Civil Appeals

226 So.3d 673

Lauren Alyse HYCHE

v.Shanon Cruz HYCHE

2150774.

Court of Civil Appeals of Alabama.

December 2, 2016

Lisa M. Ivey, Jasper; and James R. Beaird, Jasper, for appellant.

J. David Hood of Jackson, Fikes, Hood & Brakefield, Jasper, for appellee.

THOMAS, Judge.

Lauren Alyse Hyche ("the mother") appeals a judgment of the Walker Circuit Court ("the trial court") in which the trial court, among other things, divorced her from Shanon Cruz Hyche ("the father"), awarded the parties joint legal and physical custody of their son ("the child"), and ordered the father to pay child support. We affirm the trial court's judgment in part, reverse it in part, and remand this cause to the trial court.

Background

The parties were married on June 2, 2012, and the child was born on August 20, 2013. The mother filed a divorce complaint on October 23, 2015, requesting, among other things, that she be awarded "care, custody[,] and control" of the child. The father answered the mother's complaint and counterclaimed, requesting, among other things, that the parties be awarded joint legal and physical custody of the child. In December 2015, the trial court entered a pendente lite order that set out, in relevant part, the father's scheduled "periods of physical custody" and required the father to pay the mother $400 per month as child support.

A trial was held on May 11, 2016, and the trial court entered a judgment the next day divorcing the parties and, among other things, awarding them joint legal and physical custody of the child and requiring the father to pay the mother $458 per month as child support. The mother filed a timely notice of appeal. On appeal, the mother argues that the trial court's judgment should be reversed because its award of joint custody is improper and because its calculation of the father's child-support obligation is incorrect.

Analysis

The mother first argues that the trial court's judgment should be reversed because its award of joint custody "was not supported by the evidence, was not in the child's best interest, was plainly and palpably wrong, and exceeded the trial court's discretion."

"It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody."

§ 30–3–150, Ala. Code 1975.

" ‘[O]ur review of custody determinations based on ore tenus evidence is quite limited; the trial court's custody judgment is presumed correct and should be reversed only if the judgment is plainly and palpably wrong.’ Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ. App. 2003).

"....

"In Graham v. Graham, 640 So.2d 963, 964 (Ala. Civ. App. 1994), this court wrote:

" ‘In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. Hall v. Hall, 571 So.2d 1176 (Ala. Civ. App. 1990). The trial court's overriding consideration is the children's best interests and welfare. Santmier v. Santmier, 494 So.2d 95 (Ala. Civ. App. 1986). The factors that enter into the court's custody determination include the child's age and sex and each parent's ability to provide for the child's educational, material, moral, and social needs. Tims v. Tims, 519 So.2d 558 (Ala. Civ. App. 1987). Likewise, it is proper for the court to consider the "characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent." Ex parte Devine, 398 So.2d 686, 696–97 (Ala. 1981).’ "

Harris v. Harris, 59 So.3d 731, 734–35 (Ala. Civ. App. 2010).

In addition, § 30–3–152, Ala. Code 1975, provides, in pertinent part:

"(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:

"(1) The agreement or lack of agreement of the parents on joint custody.

"(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.

"(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.

"(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.

"(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.

"(b) The court may order a form of joint custody without the consent of both parents, when it is in the best interest of the child."

In its judgment, the trial court stated the following, in pertinent part:

"In reaching a decision regarding the custody of the [child], the parties stood on an equal footing such that neither parent enjoyed a favorable presumption. The paramount and controlling concern of the Court was the best interest of the child. The Court weighed the age and sex of the parties' [child]; the [child's] emotional, social, moral, material, and educational needs; and the characteristics of those seeking custody, including age, character, stability, mental and physical health, and their respective home environments. [The parties] will have joint legal and physical custody of [the child]."

In light of its findings, the trial court's judgment provided:

"[The parties] will have joint legal custody of [the child]. Both parents will discuss with each other and agree on major decisions concerning the child, including, but not limited to academic, religious, civic, cultural, athletic, and other activities, and in medical and dental care. If the parents are unable to agree on a decision, [the mother] will have the primary authority and responsibility for the final decision.

"[The parties] will have joint physical custody of [the child] in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time."

The mother testified that, at the time of the trial, she and the child were living at her mother and stepfather's house in Cordova. She stated that, before she filed her divorce complaint, she had been the child's primary caregiver and that the father had not done "a whole lot" for the child. She said that, pursuant to the trial court's pendente lite order, the child had recently been spending time with each party separately and that she felt that doing so had been "really hard on him," specifically stating: "He acts out more, his routine is thrown off, he don't go to bed on time like he did. He's ill." She contrasted the child's behavior during the divorce litigation with his behavior during the parties' marriage, during which time the child had reportedly done "[v]ery well."

The mother opined that awarding her sole physical custody of the child would be in his best interest. She based her conclusion, in part, on her belief that doing so would provide the child with more stability and a better routine and schedule, stating: "I think he needs one home." Regarding the parties' work schedules, the mother testified that the father worked for Alabama Power Company, Inc., that he usually worked 12–hour shifts, and that his schedule generally alternated between 3 and 4 workdays each week. She also stated that he had been required to work additional or different shifts during the pendency of the divorce litigation. The mother, however, worked for a pet-grooming and pet-boarding business that she had started, and she characterized her employment schedule as more flexible than the father's.

Regarding the parties' relationship and its impact upon the child, we note the mother's testimony regarding the father's actions that she said had contributed to their divorce: "The way he talked to me, not helping any, trading trucks all the time, [and] the tax stuff not getting paid like it was supposed to." She testified that, in the child's presence, the father had called her "dumb-dumb [and] ignorant" and had said that she "wasn't worth killing." She stated that, after hearing the father say those things, the child had begun to call her "dumb-dumb and would use words saying stuff like that."

The mother also testified that the father had viewed pornography during their marriage. She recounted discovering proof of such activity on the father's cellular telephone, the father's initial denial of such activity, and the father's later admission that he had done so after she had confronted him with the proof that she had discovered. She also admitted, however, that she had watched pornography with the father during their honeymoon.

Regarding their ability to cooperate with one another, the mother testified that she and the father had been unable to work together to solve problems related to the child during their marriage, that they had been unable to do so during the pendency of the divorce litigation, and that she believed that they would be unable to do so in the future. She specifically stated that the parties had not been able to agree upon the child's proper shoe size, the clothes that he should wear, or the amount of medicine that he should take; she did not believe that administering the "full dose" of over-the-counter medications to the child was always necessary. However, when asked by the trial court: "Have you shown any abilities in the past to cooperate with [the father] in regards to [the child]?," she responded: "Yes." The mother also admitted that the father is a good father to the child, that he loves the child, and that he takes good care of the child when the child is with him. Although,...