Smith v. Smith

• Decision Date: 31 October 2003
• Docket Number: No. 2020522.,2020522.
• Citation: 887 So.2d 257
• Parties: Candace Renee SMITH v. Jay Samuel SMITH.
• Court: Alabama Court of Civil Appeals

887 So.2d 257

Candace Renee SMITH v. Jay Samuel SMITH.

No. 2020522.

Court of Civil Appeals of Alabama.

October 31, 2003.

Certiorari Denied March 12, 2004

Michael Lipscomb of Lipscomb & Lipscomb, Bessemer, for appellant.

Submitted on appellant's brief only.

Alabama Supreme Court 1030296.

CRAWLEY, Judge.

Candace Renee Smith ("the mother") and Jay Samuel Smith ("the father") were married in December 1999. They separated in March 2002. The wife filed for a divorce, which the trial court granted after a trial on September 20, 2002, at which only the wife testified. One child was born of the marriage; he was 11 months old at the time of the divorce trial. The wife appeals the divorce judgment, arguing that the trial court erred by awarding the parties joint legal custody of the child, by awarding the father unsupervised visitation, by awarding the father more than "standard" visitation, by placing unwarranted restrictions on the parties during periods of physical custody, by failing to correctly compute the father's child-support obligation by omitting child-care expenses from the computation, by failing to allocate the debts of the parties, and by failing to divide the parties' personal property. We affirm in part and reverse in part.

The mother testified that the father was not able to keep a job during their short marriage. The mother further testified that she had worked at a day-care facility during the marriage but that she worked as a waitress at the time of trial. She said that her monthly income was $1,040, while child-care costs for the child amounted to $300 per month. The father's monthly income, as reflected on his CS-41 child-support income affidavit, was $1,160.

The mother claimed that the father was abusive to her during the marriage. She said that he would yell and scream at her and that he often pushed and shoved her. She recounted an incident during their separation at which, she says, the father repeatedly punched and kicked her during an argument over pendente lite visitation with the child. She further explained that she was concerned about his violent relationship with his brother, M.J.S., which, she said, involved hitting, chasing each other with baseball bats, and chasing each other with knives. M.J.S., who was 19 years old at the time of the parties' divorce trial, had been hospitalized several times and had been diagnosed with "major depressive disorder with psychotic features, impulse control disorder, and generalized anxiety disorder."

The mother has lived with her parents since the parties' separation. She described their home as a five-bedroom house in which she, her parents, her sister, and the child lived. She explained that the father currently lived with his parents in a two-bedroom trailer with M.J.S., his sister, his sister's husband, and his sister's child. When the child visits with the father overnight, he shares a bed with the father.

The mother testified that the child has asthma and must be on a nebulizer at least twice a day.¹ She explained that, although she smokes, she does not smoke around the child, in her parents' home, or in the car because of the child's asthma. She testified that the father and his family members smoked in the presence of the child before the separation. She also testified that the father called her while he had the child for visitation to say that "he couldn't do nothing with [the child]" and that he was going to take the child to day care. She also said that she had taken care of the child as an infant, that the father had not prepared bottles or changed a diaper, and that the father "sleeps hard" and does not hear the child cry at night. The mother indicated concern that the father may roll over on the child while sharing a bed during overnight visitations and concern that the father would not adequately care for the child.

The judgment awards the parties "joint custody" and then awards the mother "primary physical custody." As we have explained before, the proper terms for custody judgments are contained in Ala.Code 1975, § 30-3-151, which became effective on January 1, 1997. See Harris v. Harris, 775 So.2d 213, 214 (Ala.Civ.App.1999)

. Like the divorce judgment in Harris, the divorce judgment in the present case uses the terms commonly used by the bench and bar prior to the adoption of § 30-3-151. Again, we are faced with a judgment that awards the parties "joint custody," which is defined in the statute as "[j]oint legal custody and joint physical custody," and yet awards one party "primary physical custody," a term undefined in the statute. As we held in Harris, there is but one way to interpret a judgment that awards "joint custody" with an award of "primary physical custody" to one parent — such a judgment must be interpreted as awarding the parents joint legal custody and awarding one parent sole physical custody, the term used by the statute to denote a parent being favored with the right of custody over the other parent, who will receive visitation. § 30-3-151(5). We take this opportunity to remind the bench and bar that our legislature has adopted terminology to be used in crafting custody judgments. Use of the terminology used before the enactment of § 30-3-151 only serves to engender confusion.

"In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. The trial court's overriding consideration is the children's best interests and welfare. The factors that enter into the court's custody determination include the child's age and sex and each parent's ability to provide for the child's educational, material, moral, and social needs. Likewise, it is proper for the court to consider the `characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.'"

Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994) (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981)) (internal citations omitted). In addition, our review of custody determinations based on ore tenus evidence is quite limited; the trial court's custody judgment is presumed correct and should be reversed only if the judgment is plainly and palpably wrong. Bates v. Bates, 678 So.2d 1160, 1161-62 (Ala.Civ.App.1996)." `The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.' "Ex parte Anonymous, 803 So.2d 542, 546 (Ala.2001)(quoting Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986)). Thus, the mother's contention that the ore tenus rule does not apply to this case because she presented the only testimony and, therefore, the facts are undisputed, is incorrect. The trial court heard both the mother's testimony on direct examination and on cross-examination, and it had the opportunity to evaluate the mother's demeanor and credibility. We must review the divorce judgment with that in mind.

The mother argues that the trial court erred by awarding the parties "joint custody" because the Custody and Domestic or Family Abuse Act, Ala.Code 1975, § 30-3-130 et seq., prohibits an award of sole, joint legal, or joint physical custody of a child to the perpetrator of domestic or family abuse. See § 30-3-131. She also points out that, under the joint-custody statute, there was no presumption in favor of joint custody because the parties did not both request it. See Ala.Code 1975, § 30-3-152(c). The mother also argues that the evidence does not support a determination that joint legal custody is in the child's best interest.

A trial court is required to consider joint custody in every case. See § 30-3-152(a). It can award a form of joint custody when not requested by both parties. § 30-3-152(b). Under the joint-custody statute, the trial court retains the discretion to determine the appropriate custody arrangement on a case-by-case basis, guided, as always, by the best interest of the child. § 30-3-152(a). The joint-custody statute sets out the factors a trial court must consider in a custody case when determining whether joint custody would be appropriate:

"(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:

"(1) The agreement or lack of agreement of the parents on joint custody.

"(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.

"(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.

"(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.

"(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody."

§ 30-3-152(a).

The mother points out that the joint-custody statute and the Custody and Domestic and Family Abuse Act both reference domestic abuse as a matter to be considered by the trial court. However, the mother's testimony concerning the father's domestic abuse of her during the marriage was called into doubt by the father's attorney on cross-examination. The mother admitted, under cross-examination, that she had bitten the father during the altercation arising out of an argument about pendente lite visitation that occurred while the parties were separated; she explained that she had done so to "get [the father] off of her" during the altercation. The mother denied that the bruising on her arm that was depicted in photographs she admitted into evidence was caused by the father's attempt to hold her arms to prevent her from hitting...