Lee v. Lee

• Citation: 49 So.3d 211
• Decision Date: 16 April 2010
• Docket Number: 2080905.
• Parties: Lamiaa LEE v. Kenneth L. LEE, Jr.
• Court: Alabama Court of Civil Appeals

49 So.3d 211

Lamiaa LEE

v.Kenneth L. LEE, Jr.

2080905.

Court of Civil Appeals of Alabama.

April 16, 2010.

Heather M. Bussey, Birmingham, for appellant.

Thomas A. King, Gadsden, for appellee.

PITTMAN, Judge.

This appeal concerns custody and visitation matters arising out of a divorce action. In November 2008, Kenneth L. Lee, Jr. ("the father"), filed an action in the Etowah Circuit Court seeking a judgment dissolving his marriage to Lamiaa Lee ("the mother"), a Moroccan native whom he had met, courted, and married while he was serving in the United States Navy in the Middle Eastern country of Bahrain and who had later become a naturalized citizen of the United States. The father alleged in his complaint that one child, a son who was then three years old, had been born of their marriage; he sought an exclusive award of the child's custody because, he said, the mother planned to take the child outside the United States and to prevent the father from seeing the child again. The trial court awarded the father custody of the child pendente lite, with the mother having supervised visitation with the child, and set the remaining issues for a subsequent trial. The mother filed a motion to "transfer venue" of the action to a court in San Diego, California, based upon the parties' presence in that city in response to command orders requiring the father to report for duty there; that motion was denied. In February 2009, after the trial court had confirmed the custody and visitation provisions of the previous pendente lite order, the mother filed an answer and a counterclaim seeking a divorce and averring that she and not the father should receive custody of the child.

After an ore tenus proceeding, at which the parties testified and submitted exhibits, the trial court entered a judgment on May 20, 2009, divorcing the parties and awarding the father sole custody of the child. The trial court made the following provisions for the mother's visitation with the child:

"... [The mother] shall have supervised visitation with the [child] at all times agreed upon between the parties. The supervised visitation shall take place in a public area and the [mother] shall at no time leave alone with the parties' minor son ... else it shall be considered as parental kidnapping. [The father] shall remain with the [child] at all times during said supervised visitations, but a short distance away.

"... If at any time the [father] is to be deployed, then [he] will designate a Custodian that is to keep the [child] and he/she shall be the primary Custodian of the [child]. [The mother] shall have supervised visitation in a public area at times mutually agreed upon between the Custodian and [the mother] and the [mother] shall at no time leave alone with the [child] else it shall be considered as parental kidnapping. The Custodian shall remain with the [child] at all times during said supervised visitations, but a short distance away. During and at all times that the [father] is deployed the Custodian will have total control of the [child] and is allowed to seek medical attention, obtain medical records, school records and any other documentation needed from any source regarding the [child]."

The mother, through new counsel, appealed from that judgment to this court.

The mother's first contention is that the trial court erred in awarding custody of the child to the father. We note that an appellate court, in reviewing a trial court's child-custody determination that was based upon evidence presented ore tenus, is to presume that the trial court'sdecision is correct. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001). An appellate court will not reverse the trial court's judgment as to custody in such a case unless the evidence fails to support the trial court's custody determination so that the appellate court must conclude that that determination is " 'plainly and palpably wrong.' " Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). The correctness of an initial custody determination is dependent upon a trial court's consideration of a number of factors, such as the sex and age of the child at issue; the child's emotional, social, moral, material, and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including their ages, characters, relative stability, and mental and physical health; the ability of each parent to provide for the emotional, social, moral, material, and educational needs of the child; the interpersonal relationship between the child and each parent; and any other material concerns the evidence may disclose. See Vinson v. Vinson, 880 So.2d 469, 473-74 (Ala.Civ.App.2003); see also Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981) (rejecting the application of a presumption that the primary care of young children, in particular, should be placed with their mothers).

In this case, the mother argues that, based upon the child's relatively young age, the child "needs the care and nurture of the mother," notwithstanding the rejection of such a per se presumption in Ex parte Devine. We agree with the father that the age of the child is only one factor to be considered. Further, although the mother asserts that the father should not have custody because, she says, he does not know how to physically care for the child, the trial court heard evidence indicating that the father had cared for the child between 40 and 50 percent of the time and had toilet trained the child. Although the mother denied at that hearing the father's estimate of the time he had cared for the child, she admitted that the father had provided for the child financially. The father testified at subsequent custody hearings that the United States Navy had assigned him to a training unit in San Diego and would likely keep him in that assignment because of the child's custodial status. The father has secured a two-bedroom residence on a naval installation in the San Diego area that is adequate and that is conveniently close to the child's day-care, medical, and dental providers. In contrast, the mother testified regarding her current work at "Club Med" resorts in such places as Florida and the Bahamas, and it can be inferred from her testimony that she is subject to frequent relocation; she indicated that she was "okay with"...