Mullis v. Mullis

• Decision Date: 22 June 2007
• Docket Number: 2051068.
• Citation: 994 So.2d 934
• Parties: Lynda Marie MULLIS v. W. Randall MULLIS.
• Court: Alabama Court of Civil Appeals

994 So.2d 934

Lynda Marie MULLIS v. W. Randall MULLIS.

2051068.

Court of Civil Appeals of Alabama.

June 22, 2007.

Linda L. Howard of Murchison & Howard, L.L.C., Foley, for appellant.

Bayless E. Biles of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellee.

THOMPSON, Presiding Judge.

W. Randall Mullis ("the father") and Lynda Marie Mullis ("the mother") were married on June 25, 1995. Two children were born of the parties' relationship; at the time of the final hearing in this matter, the children were ages 14 and 8. On February 18, 2005, after almost 10 years of marriage, the father filed a complaint for divorce seeking custody of the parties' children. The mother answered and filed a counterclaim for divorce in which she also sought custody of the children. Contemporaneously with their respective complaints for divorce, the father and the mother both filed motions seeking temporary custody of the children. Following an ore tenus hearing on June 7, 2005, the trial court entered an order on June 14, 2005, awarding temporary custody of the children to the father and awarding the father temporary, exclusive possession of the marital home.

On June 24, 2005, the mother filed a motion to reconsider or, in the alternative, for visitation with the children. Before the conclusion of an ore tenus hearing on the mother's June 24, 2005, motion to reconsider, the parties reached an agreement wherein the children would remain in the temporary custody of the father and the mother would receive visitation with the children. The visitation provision of the agreement provided, among other things, that the mother would receive visitation with the children on alternating weekends and during the week from 5:00 p.m. on Wednesday to 8:00 a.m on Thursday. The parties further agreed that the father would pay the mother $600 a month to be applied to her rent. The trial court entered an order on August 15, 2005, in which it adopted the agreement reached by the parties.

On March 24, 2006, and July 7, 2006, the trial court held a hearing on the parties' respective complaints for a divorce and received ore tenus evidence. On August 8, 2006, the trial court entered a final judgment divorcing the parties, awarding the father custody of the parties' children, awarding the mother periodic alimony, and fashioning a property division. The mother timely appealed.

When a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ. App.1995). "Th[is] presumption of correctness is based in part on the trial court's unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor." Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ. App.1999). The trial court's ability to observe witnesses is particularly important in child-custody cases. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001)(quoting Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ. App.1981))("`In child custody cases especially, the perception of an attentive trial judge is of great importance.'"). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000).

The trial court conducted several ore tenus hearings in this case. The testimony and documentary evidence from those hearings revealed the following pertinent facts. At the time of the final hearing in this matter, the father was 43 years old and the mother was 53 years old. This is the mother's second marriage. The mother has four children from her previous marriage, but she does not have custody of those children. The father has one child with special needs from a previous marriage, but he does not have custody of that child.

The parties separated in November 2003 when the father moved out of the marital home. The father returned to the marital home approximately three weeks after the trial court awarded him temporary custody of the children and possession of the marital home on June 14, 2005. The father testified that when he returned to the house he discovered that the mother had left the house in a filthy condition. The father submitted numerous photographs into evidence at trial depicting an unkempt house with trash strewn and clothes piled on the floor. The mother denied leaving the house in the condition as depicted in the pictures admitted into evidence. The mother claimed that she kept the house clean while she had custody of the children.

The father testified that he also found marijuana and numerous prescription pills loose in the house when he was cleaning the house. The father explained that he took the pills he found to a pharmacist and learned that the pills were "uppers" of various kinds. The father submitted as evidence a bottle containing various types of pills and what appears to be stems of marijuana the father found while cleaning the marital home.

The father and the mother both admitted to abusing illegal drugs in the past. The record revealed that the father had been convicted in 1997 for possession of marijuana. The father testified that he had previously abused methamphetamine and marijuana but that he had stopped abusing drugs several years before the final hearing in this case. According to the father, the mother continued to smoke marijuana. The mother testified that she and the father used to smoke marijuana together, but she testified that she no longer smokes marijuana. The mother denied having a drug problem. The mother testified that she had consistently tested negative for drugs on drug screens administered to her after the initial hearings were held in the case.

The record reveals that the evening before the June 7, 2005, temporary hearing, the mother was arrested and charged with possession of a controlled substance. According to her testimony, the mother was arrested two blocks from the marital home with Xanax, a prescription drug, in her possession. At the time the mother was arrested, she did not have a prescription in her name for Xanax. The mother explained that she had had a prescription for the Xanax found in her possession but that her prescription had expired. The mother later pleaded guilty to a lesser charge of illegal possession of a prescription drug and was sentenced to two years' probation.

The father testified that the mother did not consistently exercise visitation with the children after he received temporary custody of the children in June 2005. According to the father, the mother frequently declined to exercise overnight visitation with the children on Wednesdays and missed several scheduled weekend visitations. The mother testified that the father made it difficult for her to exercise visitation with the children and, at times, refused to allow her to visit with the children. According to the mother, she did not consistently exercise overnight visitation with the children on Wednesdays because she thought it best for the children to wake up in their own beds during the school week. The mother testified that she missed visitation one weekend in August 2005 because of a mandatory evacuation for Hurricane Katrina. The mother testified that she had not paid child support to the father since the father received temporary custody of the children.

The father testified that the mother had moved four times during the year preceding the final hearing in this case and that he did not know where the mother was living at the time of the final hearing. Testimony presented over the course of several ore tenus hearings held in this case revealed that the mother had moved several times. At the time of the final hearing, the mother was living with her friend, Jill Richburg, and Richburg's two children. The mother testified that she paid Richburg $200 a week for rent.

Testimony revealed that the mother worked outside and inside the home during the parties' marriage. The mother testified that when she was not employed as a preschool teacher, she worked at home and handled all of the telephone calls for the father's plumbing business. The mother testified that she began substitute teaching at a private school in 1994 and worked there for approximately 10 years. The mother testified that her employment at the school guaranteed that the children could attend the school without paying tuition. After leaving her employment at the school, the mother worked for a child-development center, but she was fired from that job in March 2006. The mother testified at the final hearing that she had a full-time job working 40 to 48 hours a week, earning $9 per hour. The mother listed her gross monthly income as $1,560 in her CS-41 child-support income affidavit filed in the trial court.

The father is a self-employed plumber and owns Coastal Plumbing and Heating. The father testified that he charges $78.50 an hour but that he typically performs contract work and is paid a flat rate for his services. The father testified that his gross monthly income, including rental income he receives from commercial property and residential property he owns, is $3,700 a month. The father testified that after he pays expenses associated with the rental properties, his monthly income is reduced to approximately $1,700.

The parties purchased their marital home in December 2000. The father testified that the martial home had been appraised for $230,000. The father testified that $100,000 of mortgage indebtedness remains on the marital home. The father testified that the monthly mortgage payment on the marital home was $947.

In addition to the marital home, the parties own real property located on Fort Morgan Road in Gulf Shores (hereinafter "the Fort Morgan property")...