Jackson v. Jackson

• Decision Date: 13 April 2007
• Docket Number: 2050716.
• Citation: Jackson v. Jackson, 999 So.2d 488 (Ala. Civ. App. 2007)
• Parties: Christy A. JACKSON v. Joseph JACKSON III.
• Court: Alabama Court of Civil Appeals

999 So.2d 488

Christy A. JACKSON v. Joseph JACKSON III.

2050716.

Court of Civil Appeals of Alabama.

April 13, 2007.

Certiorari Denied June 27, 2008 Alabama Supreme Court 1061076.

Elizabeth G. Messer of Gonce, Young & Collum-Butler, Florence, for appellant.

Lindsey Mussleman Davis of Holt, Mussleman, Holt & Morgan, Florence, for appellee.

MOORE, Judge.

Christy A. Jackson ("the wife") appeals from the trial court's final judgment divorcing her from Joseph Jackson III ("the husband"). We affirm in part, reverse in part, and remand.

On November 29, 2005, the husband petitioned for a divorce from the wife. In that petition, the husband also sought temporary custody of the two minor children born of the marriage. The court granted the husband temporary legal custody of the children. The wife filed an answer to the husband's petition on March 17, 2006. That same day, the wife filed a petition for visitation and a petition for access to the real property acquired during the marriage.

On April 10, 2006, the trial court conducted a trial in which it received ore tenus evidence. The trial court entered a final judgment divorcing the parties on April 25, 2006.

In the divorce judgment, the court awarded the husband the marital residence and assigned him all of the debt associated with the residence. It awarded the husband and the wife the personal property presently in his or her possession, except that the wife was also awarded a Dell computer, two beds, four dressers, a rocking chair, a crib, baby clothes, two wicker shelving units, Christmas decorations, two end tables, stuffed animals, Disney movies, shoes, clothing, hair rollers, a picture frame, dishes, glassware, pictures, cookware, serving pieces and utensils, a toy box, a wood clarinet, and a washer and dryer. Other than the debt on the marital residence, each party was to be responsible for the debts in his or her name.

The court awarded the husband "primary" legal and physical custody of the two children, subject to standard visitation by the wife. The trial court limited the wife's standard visitation by ordering that her visitation be exercised at the her mother's home and that the wife not take the children from her mother's home unless her mother accompanies her. The trial court ordered the wife to pay $259 per month in child support.

On April 26, 2006, the wife filed a motion seeking relief from the judgment under Rule 59 and Rule 60, Ala. R. Civ. P. The wife's motion first challenged the supervised-visitation provision of the judgment on the grounds (1) that it was not in the best interest of the children, and (2) that the wife's mother had not consented to and could not be compelled to supervise the visitation. The wife also challenged the trial court's award of child support based on her having received, after the trial, additional pay stubs that showed her gross monthly income was only $139.48. She further asserted that she had been unable to secure additional employment.

On May 10, 2006, the trial court denied the wife's postjudgment motion. The court stated that it had not required the wife's mother to take any action but had simply conditioned the wife's visitation on being supervised by the wife's mother so as to provide for the children's safety and security. The court gave the wife an opportunity to submit a list of other suitable parties who were willing to supervise her visitation. The court also reiterated that the wife's child-support obligation had been based on the court's having imputed to the wife minimum-wage income, as set out in the original judgment, and noted that the mother could not choose to work at a job for less than minimum wage.

On May 25, 2006, the wife responded to the court's order, stating that there were no individuals willing to supervise her visitation. On June 1, 2006, the wife filed her notice of appeal.

The wife raises the following issues on appeal: (1) whether the trial court erred in denying her postjudgment motion without a hearing; (2) whether the trial court erred in granting primary legal and physical custody of the children to the husband; (3) whether the trial court erred in granting the mother only supervised visitation; (4) whether the trial court erred in ordering the mother to pay child support that exceeded her income; and (5) whether the trial court erred in dividing the marital and premarital property.

I. Denial of Hearing on Postjudgment Motion

"Rule 59(g), Ala. R. Civ. P., provides that post-judgment motions `shall not be ruled upon until the parties have had an opportunity to be heard thereon.' ... [I]f a hearing is requested, it must be granted." Geisenhoff v. Geisenhoff, 693 So.2d 489, 492 (Ala.Civ.App.1997); In re Weaver, 451 So.2d 350, 352 (Ala.Civ.App.1984). However, if a party fails to request a hearing on his or her postjudgment motion, failure to hold a hearing is not error. Geisenhoff, 693 So.2d at 492; Weaver, 451 So.2d at 352 ("In the absence of a request for a hearing on the motion for rehearing, the trial court was not in error in ruling on the motion without a hearing.").

In this case, the wife moved for relief from the divorce judgment under Rule 59 and Rule 60, Ala. R. Civ. P. She failed, however, to request a hearing on the motion. Accordingly, the trial court did not err by ruling on the wife's postjudgment motion without a hearing.

II. Custody

The wife next asserts that the custody provision in the trial court's judgment is ambiguous. The custody provision provides: "Primary legal custody and primary physical custody of the children of the parties ... will be with their father, Joseph Jackson, III, subject to the visitation rights of the children and the mother." Although the terms "primary physical custody" and "primary legal custody" have been generally disfavored by this court, we have held that custody provisions like the one at issue in this case can be interpreted only one way — as an award of sole legal and physical custody, subject to the visitation rights of the noncustodial parent. Fotheringham v. Fotheringham, 950 So.2d 339, 342 (Ala.Civ.App.2006). We find no ambiguity in this language that would warrant reversal.

We therefore must determine if the trial court's award of sole legal and physical custody to the husband exceeded the trial court's discretion. "A trial court's custody determination following the presentation of ore tenus evidence is presumed correct, and that judgment will not be set aside on appeal absent a finding that the trial court abused its discretion or that its determination is so unsupported by the evidence as to be plainly and palpably wrong." Steed v. Steed, 877 So.2d 602, 604 (Ala.Civ.App.2003). "This court may not substitute its judgment for that of the trial court." Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000). "The controlling consideration in child-custody matters is always the best interests of the child." Patrick v. Williams, 952 So.2d 1131, 1140 (Ala.Civ.App.2006).

In this case, there was evidence indicating that in the year before the final hearing the wife had initially moved out of the marital home and had left the children in the custody of the husband for three or four months. When the wife left the marital home for a second time in August 2005, she again left the children in the custody of the husband. Between August 2005 and the date of the hearing, the wife had not visited with the children overnight, and she had only seen the children for daytime visits at the wife's mother's home two or three times per month. During that time, the wife had been arrested for writing worthless checks. There was also evidence indicating that the wife had used marijuana.

Based on the evidence presented to the trial court, we find that the trial court acted within its discretion in awarding the husband sole legal and physical custody.

III. Child Support

The wife asserts that the trial court exceeded its discretion in ordering her to pay child support in the amount of $259 per month in light of the evidence, presented in support of her postjudgment motion, of a change in her income; however, that evidence was not properly before the trial court. A change in income occurring after a trial is new evidence, not newly discovered evidence. Estrada v. Redford, 855 So.2d 551, 554 (Ala.Civ.App. 2003).

"When a party has new evidence as to her income, she may be entitled to a modification of her child-support obligation if she files a petition to modify....

"A petition to modify, however, is a separate action that requires a proper filing, the payment of a filing fee, and service."

Id. The wife did not file a petition to modify her child-support obligation. Accordingly, the trial court did not err in failing to consider the evidence of her changed income.

Because the evidence of the wife's change in income presented in support of the wife's postjudgment motion was not properly before the trial court, we review the trial court's determination of child support in light of the evidence presented at trial. The wife presented evidence indicating that she earned $400 monthly. In the divorce judgment, however, the trial court stated that it based its child-support calculation on the wife's being employed full-time earning the minimum wage. Thus, the trial court must have found that the wife was voluntarily underemployed.

"A court may impute income to a parent upon a finding that the parent is voluntarily unemployed or underemployed. Rule 32(B)(5), Ala. R. Jud. Admin. A trial court does not have to make a specific finding that the parent is voluntarily unemployed or underemployed; such a finding may be implicit in the trial court's judgment."

Schiesz v. Schiesz, 941 So.2d 279, 287 (Ala. Civ.App.2006).

In this case, the trial court's implicit finding that the wife was voluntarily underemployed is not supported by the evidence. The wife had been discharged from her previous job but had been working at her current job for three...