Stocks v. Stocks

• Decision Date: 30 April 2010
• Docket Number: 2080941.
• Citation: 49 So.3d 1220
• Parties: Kristie Dawn STOCKS v. Michael Anthony STOCKS, Sr., Deborah S. Oswalt, Michael L. Oswalt, and Betty Stocks.
• Court: Alabama Court of Civil Appeals

49 So.3d 1220

Kristie Dawn STOCKS

v.Michael Anthony STOCKS, Sr., Deborah S. Oswalt, Michael L. Oswalt, and Betty Stocks.

2080941.

Court of Civil Appeals of Alabama.

April 30, 2010.

Audrey Oswalt Strawbridge of Strawbridge, Strawbridge & Strawbridge, L.L.C., Vernon, for appellant.

J. Dale Lawrence of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appellees Deborah S. Oswalt, Michael L. Oswalt, and Betty Stocks.

PER CURIAM.

Kristie Dawn Stocks ("the mother") and Michael Anthony Stocks, Sr. ("the father"), were married in November 1997, after the birth of their first child, Hunter, in August 1997. Hunter is autistic. In October 2000, the parents had their second child, Trey. Sadly, Trey suffered an aneurysm in his spinal column in May 2001; he survived, but he is confined to a wheelchair and has the use of only his right hand. Thus, both Hunter and Trey ("the children") have special needs.

In September 2002, the parents separated, and the children remained with the mother. The mother sued for a divorce from the father in August 2004; however, although the mother secured a default judgment against the father when he failed to answer the complaint or otherwise defend the action, that judgment was set aside on the father's motion and the action remained pending on the trial court's docket.

In March 2008, the father filed an answer to the divorce complaint and a counterclaim seeking temporary and permanent physical custody of the children. The trial court entered a temporary ex parte order placing the children in the custody of the father; however, because the father had alleged in his counterclaim that Hunter was residing with Betty Stocks ("the paternal grandmother") and that Trey was residing with Debbie S. Oswalt ("the paternal aunt") and Michael L. Oswalt ("the paternal uncle"), the trial court ordered that Hunter remain in the home of the paternal grandmother and that Trey remain in the home of the paternal aunt and the paternal uncle (the paternal grandmother, the paternal aunt, and the paternal uncle are hereinafter referred to collectively as "the custodians").

The mother moved to dissolve the temporary ex parte custody order and amended her divorce complaint. The custodians then moved jointly to intervene in the action and filed a petition seeking custody of the children. The custodians alleged that the children had been in the home of each child's respective custodian since September 2007 and that the mother and the father had, through their actions, voluntarily relinquished the custody of the children to their respective custodians. The father amended his answer and counterclaim in response to the mother's amended divorce complaint.

On March 14, 2008, after a hearing, the trial court entered a pendente lite order addressing the temporary custody of the children pending the outcome of the litigation of the custody dispute. That order awarded the parents temporary joint legal custody of the children and awarded the paternal grandmother temporary physical custody of Hunter and the paternal aunt and the paternal uncle temporary physical custody of Trey. The order outlined the visitation awarded to the mother and the father; the order also awarded the mother telephone visitation with Trey. Pursuant to the order, the custodians and the mother were required to cooperate in the care of the children and to cooperate so that the children could visit each other. The order further required the mother to submit to random drug screens through the court referral office.

The trial court entered a judgment divorcing the parties on March 25, 2008. However, the trial court retained jurisdiction over the remaining issues between the parties, which primarily involved the custody of the children. On June 18, 2008, the mother filed a petition alleging that the custodians were in contempt of court for violating the pendente lite order. Ultimately, the trial court held a trial on the contempt and the custody issues on July 23, 2008.

In the judgment resolving the custody issues, the trial court declined to find any party in contempt. The trial court further determined that the mother and the father had not voluntarily relinquished custody of the children to the custodians because the arrangement for the care of the children was intended by all parties to have been temporary. The judgment further determined that the mother and the father were unfit to have the custody of the children and awarded custody of each child to his respective custodian or custodians. The mother and the father were awarded visitation, and the father was ordered to pay child support. The mother was not employed at the time of the trial, and the trial court reserved jurisdiction to award child support from the mother once she became employed. The mother appealed that judgment; we dismissed the appeal as having been taken from a nonfinal judgment. Stocks v. Stocks, 25 So.3d 480 (Ala.Civ.App.2009). After the dismissal of the first appeal, the trial court entered a judgment addressing the remaining issues of alimony and property division, rendering its judgment final. The mother appealed for the second time. The father did not appeal.

We note at the outset that "[w]hen a trial court 'makes findings of fact based on evidence presented ore tenus, an appellate court will presume that the trial court's judgment based on those findings is correct....' " C.P. v. W.M., 837 So.2d 860, 864 (Ala.Civ.App.2002) (quoting Ex parte Byars, 794 So.2d 345, 347 (Ala.2001)). The basis for the ore tenus presumption is well settled:

" ' "This presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility. Thisopportunity to observe witnesses is especially important in child-custody cases. 'In child custody cases especially, the perception of an attentive trial judge is of great importance.' Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981)."

" ' Ex parte Fann, 810 So.2d 631, 633 (Ala.2001). This court is not allowed to reweigh the evidence or to substitute its judgment for that of the trial court. Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996).' "

G.H. v. K.G., 909 So.2d 206, 208-09 (Ala.Civ.App.2005) (quoting Estrada v. Redford, 855 So.2d 551, 555 (Ala.Civ.App.2003)). In a case like the present case, in which the burden of proof is to establish facts by clear and convincing evidence, see Ex parte Terry, 494 So.2d 628 (Ala.1986), discussed infra, this court must determine on appeal whether there exists evidence in the record from which the trial court could have concluded that the fact sought to be proved was clearly and convincingly established. See Ex parte McInish, 47 So.3d 767, 772 (Ala.2008) (quoting with approval KGS Steel, Inc. v. McInish, 47 So.3d 749, 756 (Ala.Civ.App.2006) (Murdock, J., concurring in the result)).

After the entry of the default divorce judgment in 2004, the mother began a relationship with Edward "Chet" Cannon. The mother's relationship with Cannon resulted in the birth of her third child, Aislyn, in January 2006. Aislyn was born slightly premature via a caesarean section and had a severe case of acid reflux as an infant; she underwent surgery to assist with that problem. The mother developed complications after Aislyn's birth and later suffered a miscarriage in July 2006. An ultrasound of her abdomen at that time showed some cysts that would require surgical removal; however, the mother had no hospitalization or medical insurance at the time and chose not to seek further treatment. Over the next year, the mother continued to suffer from health problems. She continued to have abdominal pain and also experienced painful menstrual cycles.

The following summer, in August 2007, the mother sought treatment of a spider bite to her foot at the emergency room. During her follow-up visit with Dr. Jon Sanford, the mother discussed some of her health problems with him, including her painful menstrual cycles and continuing abdominal pain. Dr. Sanford discussed with the mother the possibility of undergoing a radical hysterectomy. When the mother expressed favorable interest in the procedure, Dr. Sanford referred the mother to Dr. Dan Avery, who performed the procedure on September 20, 2007.

Before the mother underwent her surgery, she sought the assistance of the paternal aunt, mentioning to the paternal aunt the need for someone to take care of the children during the surgery and the recovery period afterward. The paternal aunt indicated that the children would be cared for, and she arranged for Trey to stay with her and for Hunter to stay with the paternal grandmother. The mother underwent her surgery, and, during her recovery period, she was prescribed Ultracet and Lortab, two opiate-derived pain medications. Over the next several months, the mother suffered from further health issues and complications.

The mother continued to suffer abdominal pain, which was sometimes extreme, immediately after the hysterectomy. After further medical examinations discovered that the mother had a kidney stone, she underwent a procedure to remove the kidney stone on October 25, 2007. After the kidney stone was removed, the mother had another surgery to remove internal hemorrhoids and to remove her appendix in early November 2007. The mother was prescribedLortab as a pain medication following her November surgery. After that surgery, the mother developed a staph infection, which resulted in several sores on her buttocks and her rectal and genital area. She also developed sores on her arm and one on her face, which likely resulted from her hand, wrist, or arm coming in contact with a sore while cleansing it and her having touched her face without adequately sanitizing the skin. The mother underwent two rounds of antibiotic treatment as a result of the staph infection in December 2007 and January 2008.

Although it was unrelated to her two surgeries, the mother also developed an abscessed tooth in...