K.D.H. v. T.L.H. III

• Decision Date: 15 August 2008
• Docket Number: 2060827.
• Citation: 3 So.3d 894
• Parties: K.D.H. v. T.L.H. III.
• Court: Alabama Court of Civil Appeals

3 So.3d 894

K.D.H. v. T.L.H. III.

2060827.

Court of Civil Appeals of Alabama.

August 15, 2008.

Susan G. James of Susan G. James & Associates, Montgomery, for appellant.

John Olszewski and Floyd Minor of Minor & Olszewski, L.L.C., Montgomery, for appellee.

MOORE, Judge.

In this appeal, K.D.H., the mother, challenges the custody, visitation, child-support, and attorney-fee provisions of a judgment divorcing her from T.L.H. III, the father. We affirm in part, reverse in part, and remand.

Background

In March 2006, the father filed a complaint seeking a divorce from the mother on the ground of incompatibility. He asserted that they had married in 1998; that they had three children, born on September 22, 1999, March 11, 2001, and April 10, 2003; and that, at the time he filed his complaint, the mother was pregnant with another man's child. He requested that a guardian ad litem be appointed to represent the unborn child. He sought custody of the parties' children, child support, and a division of all the parties' real and personal property. The mother answered the complaint and counterclaimed for a divorce. She sought sole custody of the parties' children.

The court appointed a guardian ad litem for the unborn child; the trial court also appointed a guardian ad litem for the parties' three children. The parties were ordered to mediate, but they did not reach a resolution during that mediation. Trial commenced on August 18, 2006. On the third day of the trial, the parties announced that they had reached a settlement. The parties' counsel read the terms of that agreement into the record, and the parties affirmed that the terms were, in fact, their agreement. The guardians ad litem approved the terms of the settlement. The trial court instructed the parties to file the settlement papers with the court within 30 days. The trial court scheduled a compliance review hearing for November 2, 2006.

At the compliance review hearing, the mother informed the court that she had discharged her previous counsel and that she did not agree with the terms of the settlement agreement. She made an oral motion to set aside the settlement agreement and to proceed with the trial. The trial court granted that motion, and the trial court set the trial to continue on November 13, 2006. The trial proceeded on November 13 and 14, 2006.

The evidence contained in the record reveals the following: At the time of the trial, the father was employed as an associate minister in a Methodist church located in Elmore County. During the marriage, the father worked primarily with the youth program at the church. The mother was, for the majority of the marriage, a stay-at-home mother. However, she also worked at the church with the youth on a volunteer basis and helped out at the church on an "as-needed" basis. At one point, she worked a part-time job to earn money for the family's church-building fund pledge.

The father called numerous witnesses who worked at the church or who attended the church, all of whom testified that the father should receive custody of the three children born to the mother and father because he was the more stable and settled parent of the two. The mother also called as witnesses a former member of the church, the pastor of her new church, her new pastor's wife, and various friends who all testified that she was a loving mother, that she was the more patient and devoted parent, and that she should receive custody of the parties' children.

The mother admitted that, in December 2005, during her marriage to the father, she had had sexual intercourse with A.G., a man involved in the church. She testified that they were physically intimate only once; A.G.'s testimony confirmed that fact. The mother became pregnant as a result of the one-night encounter. The mother admitted that when she learned she was pregnant, she initially told the father and the church that he was the father of the child, even though the father had undergone a vasectomy years earlier. Within two weeks she revealed the truth. The mother carried the pregnancy to term; she testified that terminating the pregnancy was never an option for her and that she had refused to place the child for adoption, as the father had urged her to do.

The guardian ad litem for the parties' three children filed a written recommendation with the trial court; he recommended that the mother and the father receive joint legal custody, that the father receive primary physical custody, but that the mother receive more than standard visitation. He noted that the mother was currently unemployed, and, for that reason, he made no recommendation as to the issue of child support.

On February 16, 2007, the trial court entered a final judgment, awarding the father primary custody of the parties' three children; reserving the issue of paternity over the fourth child born during the parties' marriage ("the infant");¹ awarding the mother visitation with the children during alternating weeks from Thursday afternoons at 3:00 p.m. until Sunday afternoons at 3:00 p.m.; awarding the mother visitation during the other weeks from Thursday at 3:00 p.m. until the following morning; awarding the mother summer and holiday visitation with the children; ordering the mother to pay child support to the father in the amount of $363 per month; ordering the mother to pay $7,000 toward the father's attorney's fees; ordering the mother to pay $5,340 of the $8,640 fees incurred by the guardian ad litem appointed to represent the parties' three children; and ordering the mother to pay 100% of the $3,000 fees incurred by the guardian ad litem appointed to represent the infant.

On March 19, 2007, the mother filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial; she submitted an affidavit in support of that motion. On May 1, 2007, the trial court struck the mother's affidavit and denied her motion to alter, amend, or vacate or for a new trial. On June 8, 2007, the mother filed a notice of appeal.

In her principal brief on appeal, the mother asserts that the trial court exceeded its discretion in awarding the father custody of the parties' children, in denying the mother equal time with the children, in ordering the mother to pay child support to the father, and in ordering the mother to pay the guardian-ad-litem fees and the attorney fees of the father's counsel. In her reply brief, the mother asserts that she is not seeking sole custody but is seeking only "equal time as a parent who was determined equally as fit as her husband."

Custody

The mother argues that the trial court erred in finding that the mother was the "primary cause of the destruction of the marriage." "[T]he ore tenus rule affords a correct and necessary deference to the trial court's factual findings." J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1185 (Ala.Civ.App.2007).

"We first note that, when evidence is presented ore tenus, the trial court's ruling as to child custody carries a strong presumption of correctness. Wheeler v. Wheeler, 574 So.2d 832 (Ala. Civ.App.1990).

"`Because the trial judge is in a unique position to observe and to hear evidence, this court will not reverse on appeal unless the ruling is so unsupported by the evidence that it constitutes an abuse of discretion and, therefore, is clearly and palpably wrong.'"

McGiffert v. McGiffert, 627 So.2d 972, 973 (Ala.Civ.App.1993) (quoting Wheeler v. Wheeler, 574 So.2d 832, 832 (Ala.Civ.App. 1990)). Based on that standard of review, we cannot hold the trial court in error for determining that the mother was primarily at fault for the breakup of the parties' marriage. The record contains ample evidence indicating that the mother's adultery and resulting pregnancy led directly to the parties' divorce.

We note that the mother does not argue in her appellate brief that the trial court erred as a matter of law by failing to consider whether her adultery had a detrimental impact on the parties' children, which is required in order to consider that misconduct as a basis for a custody award, see Murphree v. Murphree, 579 So.2d 634, 636 (Ala.Civ.App.1991) ("Before custody may be denied on the basis of indiscreet behavior, there must be evidence showing that such misconduct is detrimental to the child."), and McGiffert, supra (accord). The mother's brief likewise fails to cite any authority to that effect.

"`[I]t is well settled that a failure to comply with the requirements of Rule 28(a)(10)[, Ala. R.App. P.,] requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.' State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005). We may do so because `"it is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument."' Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994))."

State Farm Mut. Auto. Ins. Co. v. Bennett, 974 So.2d 959, 962 (Ala.2007). Accordingly, we will not consider that issue.

Based on the foregoing, we find that the mother has not properly presented any grounds to reverse the custody provisions of the judgment.

Visitation

The mother next argues that, if this court affirms the trial court's award of primary physical custody to the father, the award of visitation to her was disparate and less liberal than the visitation previously agreed upon by the parties in their withdrawn settlement agreement. She points out that she and the father originally agreed that the mother would have 12 days of visitation with the parties' children each month but that, under the trial court's final judgment, she received only 8 days of visitation each month. She argues that the trial court's reduced visitation schedule is harmful to the...