Smith v. Smith

• Decision Date: 31 May 2002
• Citation: 836 So.2d 893
• Parties: Brian C. SMITH v. N. Laquetta SMITH.
• Court: Alabama Court of Civil Appeals

836 So.2d 893

Brian C. SMITH v. N. Laquetta SMITH.

2001040.

Court of Civil Appeals of Alabama.

May 31, 2002.

Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.

Susan C. Conlon, Huntsville, for appellee.

CRAWLEY, Judge.

Brian C. Smith, the husband, appeals from a judgment divorcing him from N. Laquetta Smith, the wife. We affirm in part, reverse in part, and remand with instructions.

The record reveals the following: the husband and wife were married in 1991, and two children were born of the marriage. A daughter was born in 1991, and a son was born in 1996. During the marriage, the wife worked as a registered nurse at Huntsville Hospital every other weekend from the beginning of the marriage until 1999. She later worked part-time for Gradkell Systems, Inc., a closely held computer corporation owned primarily by the wife's brother. The wife voluntarily resigned her position as a nurse in 1999 because of a self-confessed problem with alcohol abuse and narcotics that, among other things, compelled her to inject herself with "waste"¹ portions of narcotics after having administered the prescribed dose to her patients. On April 29, 1999, the wife checked into Bradford Health Services² ("Bradford") for a three-week inpatient-treatment program. The wife's mother paid the expenses of the program. During her absence, the children stayed with the husband.

Upon returning home, the wife began attending Alcoholics Anonymous ("AA") meetings and also attended an outpatient-treatment program at Bradford on a regular basis. The husband did not support the wife's recovery attempts; he refused to attend "Al-Anon" support-group meetings, told the wife that AA meetings were only for "losers," and told the wife that he was ashamed for anyone to know that she attended AA meetings. The husband also kept alcohol in the home, drank alcohol around the wife, and offered the wife cocktails on occasion. In addition, the husband regularly searched the wife's possessions and called the numbers on the caller-identification log on the wife's cellular telephone in an effort to track the wife's activities. The wife suffered a relapse in March 1999 and resumed her consumption of alcoholic beverages approximately twice a week, drinking one to two bottles of wine on each occasion.

The wife regained sobriety on March 7, 2000, and currently attends AA meetings two to three times weekly, serving as the speaker at some of the meetings. The wife is presently receiving treatment from Dr. Roger Rinn, a clinical psychologist. As a condition to his continuing to treat her, Dr. Rinn insists that the wife undergo random drug-and-alcohol screenings; he has administered a total of seven screening tests since he began treating her in April 2000, and all of those tests have been negative. Dr. Rinn has observed the wife interacting with both of the minor children and has described that interaction with them as appropriate. In addition, Dr. Rinn believes the wife's status as a recovered alcoholic to have little relevance concerning which parent should act as custodian of the children because, he explained, the chance of relapse falls dramatically after the initial six months of sobriety and also because of the wife's high level of motivation. The wife has arranged, financed and provided transportation for all of the children's extracurricular activities, such as tutoring, karate, dance, swimming, and acrobatics. In addition, she has been the primary caretaker for the children during the course of the marriage.

The husband is a scientist at Coleman Research Corporation and earns $101,500 per year. He has been married twice. He has two children, both boys, from his previous marriage; those boys were ages 11 and 14 at the time of trial. The father does not exercise overnight visitation with his oldest child from his previous marriage because that child will not respect his "house rules," and spends little time with the younger child, delegating most of the child-care for that child to the wife. Since the wife began treatment at Bradford, the husband has been very invasive of the wife's privacy, searching her purse, dresser, and car on a regular basis; taping her conversations and public speeches at AA meetings; stealing her private journal that she kept at Bradford as a part of her treatment; and dialing all of the numbers stored in her cell phone, including that of her attorney. The husband has called the police to report various offenses against the wife on five occasions; none of those calls has resulted in any arrests, fines or citations.

The husband sought treatment for himself from a clinical psychologist, Kathryn Allen, for marital stress. Dr. Allen administered a number of tests that are typically used in custody evaluations. She administered the Minnesota Multiphasic Personality Inventory-2 ("MMPI-2"); the husband's results from the MMPI-2 were within normal limits. Dr. Allen also administered the Bricklin Perceptual Scales test to the minor daughter, and Dr. Allen testified that the results revealed that the daughter felt similarly about both parents.

The husband filed a petition seeking a divorce and full custody of the two minor children on March 28, 2000, claiming that the wife was unfit to serve as a custodial parent because she was subject to a relapse into alcohol abuse. After a trial at which ore tenus testimony was presented, the trial court entered a judgment awarding joint legal custody to the parties, with primary physical custody to the wife. In its judgment, the trial court directed the wife to continue treatment with Dr. Rinn for as long as the doctor deemed necessary and authorized the doctor to report to the court any positive results of random drug and alcohol tests administered to the wife. The trial court directed the husband to pay $1,097 per month in child support for the minor children and to maintain hospitalization, major medical, and dental (if available) insurance coverage for the parties' minor children for so long as the group insurer allows. In addition, the trial court ordered the husband to maintain a policy of life insurance with a minimum value of $150,000, naming the wife as beneficiary on behalf of the children. The trial court made various divisions of personal property in its judgment, awarded the parties their own vehicles, and awarded the wife the marital residence subject to the mortgage indebtedness thereon in the amount of $73,000. The trial court ordered each party to pay the indebtedness in the party's own name with the exception of a Redstone Federal Credit Union signature loan, which was allocated to each party equally. The trial court awarded the wife no periodic alimony.

The husband filed a postjudgment motion. After the trial court held a hearing on the postjudgment motion, it entered an amended judgment, finding that the wife was voluntarily underemployed and reducing the amount of monthly child support from $1,097 to $1,067 per month; the trial court also directed the wife to avoid consumption of alcoholic beverages when the children were in her care and directed the wife to refinance the marital home within 60 days of the date of the judgment. The husband appealed.

On appeal, the husband claims that the trial court erred to reversal in awarding the wife custody of the two minor children. As to the standard of review applicable to that issue, this court recently quoted our Supreme Court as follows:

"`[W]here evidence is presented ore tenus, a child custody determination is committed to the sound discretion of the trial court, and [that determination] will not be reversed on appeal absent a finding that the determination is so poorly supported by the evidence as to be plainly and palpably wrong. This standard recognizes the trial court's unique position to observe the parties and to hear their testimony.'"

Moore v. Moore, 795 So.2d 736, 737 (Ala. Civ.App.2001) (quoting Ex parte Walters, 580 So.2d 1352, 1353 (Ala.1991) (citations omitted)). The primary consideration in determining custody is the best interests and welfare of the children. Brown v. Brown, 602 So.2d 429 (Ala.Civ.App. 1992). The trial court considers several factors, including the age and needs of the children and each parent's ability to provide for those needs. Id.

After reviewing the evidence in the record, we conclude that the trial court did not abuse its discretion by awarding custody of the children to the wife. The evidence indicates that either parent would have been a suitable custodian of the children and that each parent is quite capable of caring for the children. In addition, the wife has historically provided the day-to-day care for the children, and she is accustomed to responding to their needs. Any concerns the husband may have regarding the wife's potential relapse have been addressed in the trial court's direction that the wife continue treatment with Dr. Rinn and its having authorized Dr. Rinn to report to the court any positive results from random drug and alcohol tests administered to the wife. Therefore, we affirm the custody award.

The husband argues that the trial court erred to reversal in directing him to provide health insurance for the children of the marriage "for as long as such group insurer allows (i.e. if a full-time student, coverage may be available beyond the child's age of majority)." He maintains that, if his health insurance carrier allows coverage for dependents beyond the age of majority, this provision would be reversible error. We agree. In this case, there is no evidence regarding whether the husband's health-care insurer does or does not allow coverage of adult dependents. The direction in the judgment is expressly conditioned on the husband's health insurer's agreement to provide such coverage. There is no evidence in the record that that condition has been met to trigger what the husband considers as objectionable coverage. Moreover, the wife has...