Pate v. Guy, 2031005.

• Decision Date: 30 December 2005
• Docket Number: 2031005.
• Citation: 942 So.2d 380
• Parties: Sandy Renee Guy PATE v. Gregory Gilbert GUY.
• Court: Alabama Court of Civil Appeals

942 So.2d 380

Sandy Renee Guy PATE v. Gregory Gilbert GUY.

2031005.

Court of Civil Appeals of Alabama.

December 30, 2005.

Order Overruling Rehearing March 17, 2006.

Certiorari Denied May 12, 2006 Alabama Supreme Court 1050881.

COPYRIGHT MATERIAL OMITTED

Elizabeth H. Huntley, Clanton, for appellant.

Amy Hayes Naylor, Clanton, for appellee.

PITTMAN, Judge.

Sandy Renee Guy Pate ("the mother") appeals from a judgment divorcing her from Gregory Gilbert Guy ("the father"), dividing the marital property, awarding custody of the parties' children, and setting a child-support obligation.

The parties were married on April 28, 1984. Two daughters were born of the marriage, one in 1990 and one in 1996. On June 12, 2001, the father filed a complaint seeking, among other things, a judgment divorcing him from the mother and equitably dividing the marital property. The father also requested liberal visitation with the parties' children. The mother filed an answer and counterclaim requesting, among other things, a judgment awarding her custody of the children, child support, and alimony. The mother also filed a request for pendente lite support; a hearing on that issue was conducted before a special master on July 6, 2001. During the hearing on the pendente lite support, each party testified that neither one was employed at that time. Although each party admitted to owning a share of a family-owned business within their separate families, each party stated that both businesses were operating at a loss at the time of that hearing. Additionally, both parties admitted that their financial record keeping had not been particularly accurate during the marriage; the mother alleged that during the marriage the father regularly took cash out of his family business, which the couple had not reported on their federal-income-tax returns.

The evidence also indicated that previously the father had been injured while employed by a construction company and had received a $500,000 settlement for his injuries. The parties had used much of that settlement money to pay for construction of the jointly owned marital residence, which they owned debt-free at the time that the divorce complaint was filed. Based on the parties' insistence that neither party was gainfully employed, the special master concluded that he could not calculate the appropriate child-support obligation pursuant to Rule 32, Ala. R. Jud. Admin.; therefore, the child-support determination was reserved for the trial judge to make at the final hearing on the issues. Following the hearing on pendente lite support, the parties were instructed to continue to pay their share of the normal marital expenses; in addition, the father was awarded standard visitation with the children every other weekend and every Wednesday after school.

The trial court conducted an ore tenus proceeding in June 2002,¹ and on July 3, 2002, it entered an order that granted the parties a divorce but reserved "for future consideration all other issues," including the award of custody of the parties' children, the awards of child support and alimony, and "the division of marital property and debt." In addition, the July 2002 order renewed all existing pendente lite orders until a final judgment could be entered.

The trial court received documentary evidence and testimony from the parties and other witnesses on January 13-14, 2003, April 15, 2003, and May 7, 2004. Among the witnesses testifying on behalf of the father were the children's paternal grandmother, the father's sister, and two family friends; among those testifying on behalf of the mother were the eldest daughter of the parties, four employees or former co-workers of the father, two family friends, and the businesses' accountant.

Because the actual trial consisted of 4 days over a 16-month period, the testimony cannot easily be reduced into a short summary. Stated simply, each party bitterly contested each and every assertion made by the other party. The father's family and friends testified that the mother was loud, argumentative, vulgar, and irrational. The mother's witnesses insisted that the father was self-centered, lazy, irresponsible, and violent, with an uncontrollable temper. The father testified that the mother had consistently failed to provide the children for the pendente lite alternating-weekend visitation. On the other hand, the mother complained that the father had not offered to pay for any of the household expenses such as groceries or utilities during the pendency of the divorce action.

The only undisputed testimony was provided on the final day of the proceeding by the parties' accountant, Linda Pittman. Pittman stated that she had prepared the business-income-tax returns for both family businesses beginning in 2001. She testified that the mother's family business had paid the mother a salary of $10,000 in 2001 but had not paid her any salary in 2002 or 2003. Pittman noted that her records revealed that that business had earned less than $10,000 in 2002 and only $11,000 in 2003. On the other hand, Pittman noted that the father's family business had earned in excess of one million dollars during each of those same three years.

Other than the testimony regarding the current assets of the family businesses, very little testimony regarding the parties' marital assets and debts, child support, visitation, and personal property was undisputed. The father did admit that besides paying the annual homeowner's insurance and property-tax payment of around $5,000 per year, he had paid nothing toward the household expenses after he filed his divorce complaint in June 2001. The father insisted that although he was not required to support the children pendente lite, his income was negligible in that he claimed his weekly salary was around $265 per week from the family business. During cross-examination, the father admitted that he regularly gave between $600 and $700 per month to his girlfriend with whom he was living to pay toward the couple's monthly bills. Additionally, the father stipulated that he had written checks totaling $52,000 on his family-owned-business account to pay for gambling losses in 2002.

The mother stated that she had gone back to teaching in elementary school after the parties had separated to provide health insurance and a steady income for herself and the children. She estimated that the household bills, including utilities and groceries, fluctuated between $1,500 and $2,000 per month. She testified that the older daughter would not visit the father and paternal grandparents because she was afraid of the men. The mother noted that the paternal grandfather had been accused of molesting two of the young women in the family; she stated that after the paternal grandfather had offered her money in exchange for sexual favors that the father had banned the paternal grandfather from visiting the marital residence. The parties' older daughter testified that she stopped visiting with her father because during visitations he would leave her with the paternal grandparents all weekend; she also complained that her father yelled at her "a lot" and constantly made derogatory comments about her mother.

On July 15, 2004, the trial court entered a final judgment regarding the issues that had been reserved from the July 2002 order. The trial court awarded primary custody of the parties' children to the mother. The trial court awarded the father and the paternal grandfather² alternating weekend and specific holiday visitation, subject to the supervision of the paternal grandmother or the paternal aunt. The father was ordered to pay $1,223 in monthly child support and to pay one-half of the noncovered medical costs incurred by the children. The mother was ordered to maintain health-insurance coverage for the children. The trial court awarded each party the vehicle in his or her possession.

The judgment awarded the mother the marital residence and approximately two and one-half acres on which that residence was located, all of the parties' marital interest in her family's retail-furniture business, and all of her teacher's pension. The judgment awarded the father all of the parties' marital interest in his family's building-supply business and the title to approximately 40 acres which was the remaining acreage abutting the marital residence and jointly owned by the parties. He was also awarded the full amount of his carpenter's union retirement account.

The mother's primary allegation of error is that the trial court erred in failing to award pendente lite, retroactive, or adequate child support. The mother also asserts that the trial court's marital-property division was inequitable so as to constitute an abuse of discretion. In addition, she contends that the trial court erred in awarding visitation to the paternal grandparents, who, she claims, did not properly intervene in the divorce action, and in failing to award her a reasonable attorney fee.

Alabama's well-established standard of review is that a divorce judgment based on ore tenus evidence is presumed to be correct. See Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995); and Kratz v. Kratz, 791 So.2d 971, 973 (Ala.Civ. App.2001). Such a judgment will be reversed only where it is unsupported by the evidence so as to be plainly and palpably wrong. Scholl, supra; Kratz, supra. The ore tenus rule is based, in part, on the unique position of the trial court to personally observe the parties and the witnesses and to assess their demeanor and credibility. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

The mother first contends that the trial court erred in failing to award child support either pendente lite or retroactive to the filing of the divorce complaint. In Brown v. Brown, 719 So.2d 228 (Ala.Civ. App.1998), this court overruled earlier caselaw and established the following rule. At its discretion, a trial court may award child support retroactive to the...