Turner v. Turner

• Decision Date: 20 May 2016
• Docket Number: 2141027.
• Citation: 210 So.3d 603
• Parties: Jamie Diana TURNER v. Courtney Amos TURNER.
• Court: Alabama Court of Civil Appeals

210 So.3d 603

Jamie Diana TURNER

v.Courtney Amos TURNER.

2141027.

Court of Civil Appeals of Alabama.

May 20, 2016.

Mari Morrison, Birmingham, for appellant.

Denise J. Pomeroy of Dominick, Feld, Hyde, P.C., Birmingham, for appellee.

MOORE, Judge.

Jamie Diana Turner ("the mother") appeals from a judgment entered by the Jefferson Circuit Court ("the trial court") divorcing her and Courtney Amos Thomas ("the father") on the ground of adultery, awarding custody of the parties' child, C.A.T. ("the child"), to the father, ordering the mother to pay child support, ordering the mother to reimburse the father for certain expenses he had incurred on behalf of the child, and ordering the mother to pay certain fees for the child's guardian ad litem and a portion of the father's attorney's fees. We affirm the trial court's judgment in part and reverse it in part.

I. Ground for Divorce

Alabama law recognizes adultery as a ground for divorce. See § 30–2–1(a)(2), Ala.Code 1975. Caselaw has not explicitly defined the meaning of "adultery" for the purpose of applying § 30–2–1(a)(2), 1 Judith S. Crittenden & Charles P. Kindregan, Jr., Alabama Family Law § 5:8 (2008), but the appellate courts of this state have clarified that a trial court may divorce parties only for adulterous conduct preceding the filing of the divorce complaint. See Morgan v. Morgan, 183 So.3d 945, 955 (Ala.Civ.App.2014) ( "[T]he party alleging adultery must present sufficient evidence to establish that the adulterous behavior took place before the filing of the divorce complaint."). Hence, when the record contains insufficient evidence indicating that a spouse committed adultery before the filing of the complaint for a divorce, a trial court errs in divorcing the parties based on adultery. See, e.g., Ragan v. Ragan, 655 So.2d 1016 (Ala.Civ.App.1995).

In this case, the father did not request that the trial court divorce the parties on the ground of adultery. At trial, the father testified that before November 27, 2012, the date the mother filed the divorce complaint, he had seen the mother talking with Jamie Gamble at one or more of the child's baseball games. The father testified that he had objected to the mother's interaction with Gamble because "she didn't really know [Gamble]." The father also testified that, in the period leading up to the service of the divorce complaint, there was "[n]o communication, a lot of secretness, texting and on the phone all time." The mother testified that Gamble had attended one of the child's baseball games in the fall of 2012 and that he had sat with her at that game, but, she said, she had started "dating" Gamble only "a couple of months" before April 2013. The mother gave birth to a child fathered by Gamble on December 29, 2013, and gave birth to another child, who was also fathered by Gamble, on December 10, 2014. The mother admitted that she had committed adultery, meaning that she had engaged in sexual relations and had cohabited with Gamble while she was still married to the father, but maintained that any adulterous activity occurred only after the parties had separated and she had filed for a divorce.

Incidents of adultery occurring after a divorce complaint is filed are admissible to corroborate evidence of adultery before the date of filing, but such incidents cannot be the sole basis for granting a divorce on the ground of adultery. Smith v. Smith, 599 So.2d 1182, 1184 (Ala.Civ.App.1991). The record contains undisputed evidence indicating that the mother cohabited with and engaged in sexual intercourse with Gamble after the filing of the divorce complaint, but the record contains insufficient evidence of any similar adulterous conduct before that date. See Scott v. Scott, 215 Ala. 684, 112 So. 218 (1927) (explaining that evidence of post-filing incidents of adulterous conduct may be admitted as confirmatory or cumulative evidence of the same or similar pre-filing incidents of the same conduct). The mere fact that the mother was seen in a public venue with Gamble and that she had engaged in unexplained acts of "secretness" as well as had frequently used her cellular-telephone and text-messaging service to communicate with unknown persons does not equate to evidence of adulterous conduct, see Capone v. Capone, 962 So.2d 835 (Ala.Civ.App.2006), which, in this state, must be of such a nature as to "lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference." Maddox v. Maddox, 281 Ala. 209, 212, 201 So.2d 47, 49 (1967). Without sufficient evidence of any pre-filing adulterous conduct, the clear evidence regarding the mother's post-filing relationship with Gamble cannot be considered as sufficiently supporting adultery as the ground for the parties' divorce. See Hilley v. Hilley, 275 Ala. 617, 157 So.2d 215 (1963). Therefore, we reverse the judgment insofar as it divorced the parties on the ground of adultery.

II. Child Custody

The child was born to the mother before the marriage between the mother and the father. In its judgment, the trial court determined, based on the parties' stipulation, that the child was the parties' child and awarded sole physical custody of the child to the father, subject to the right of scheduled visitations by the mother. The mother contends that the trial court reached its custody determination by erroneously limiting the testimony of the child and by erroneously basing its decision on the mother's adultery. We disagree.

The child was 10 years old at the time of the trial. The mother notified the trial court that she intended to call the child to testify about, among other things, the father's "taking [the child's] money as well as selling [the child's toys] and pawning or doing whatever with them." After a lunch recess, the trial court informed the parties that they would not be allowed to examine the child regarding the alleged taking of the child's property by the father. The trial court reasoned that the property in question was actually owned by the parents unless otherwise vested in the child by an order of the trial court and that the father would have had an unrestricted right to dispose of the property, particularly if the father had done so as a disciplinary measure. The trial court indicated that the father's disposition of the property would not affect the custody determination. The mother's attorney indicated that she expected that the child would have testified that the father had sold the child's bicycle and had kept the proceeds of the sale and that the father had, against the child's wishes, sold video games the mother and others had given the child.

The father denied that he had ever taken money from the child. He explained that, for disciplinary reasons, he did on occasion withhold from the child money the child otherwise would have received. The father testified that he had sold a "Power Wheel" that he had purchased as a Christmas gift for the child because the child had outgrown it and that the proceeds from that sale had been used to purchase Christmas gifts for the child the following year. The father also testified that he had sold a bicycle he had given the child in order to purchase the child a new bicycle. The father further testified that the child had traded-in video games that were compatible with a gaming system the child had once used in the mother's home, but which had since disappeared without explanation, in order to obtain new video games that would be compatible with a new gaming system the father had purchased for the child for use at the father's home.

On appeal, the mother does not argue that the reasons given by the trial court for excluding the testimony of the child were erroneous, so that argument is waived. Jones v. Sherrell, 52 So.3d 527, 533 (Ala.Civ.App.2010). The mother instead argues that she intended to use the child's testimony to prove that the father lacked sufficient financial means to properly care for the child, a relevant factor in determining custody of the child. See Ex parte Devine, 398 So.2d 686 (Ala.1981). However, the mother did not argue that point to the trial court. The mother cannot place the trial court in error for excluding the child's testimony "by presenting a new purpose for the requested testimony" on appeal. Cooper v. Cooper, 160 So.3d 1232, 1243 (Ala.Civ.App.2014). Moreover, the mother questioned the father at length about the father's employment and financial circumstances, and the trial court fashioned a child-support award to assure that the material needs of the child would be met in accordance with the means of the parents. We conclude that the trial court did not exceed its discretion in excluding the proffered testimony and that the mother has failed to show that the exclusion of the child's testimony has probably injuriously affected her substantial rights. Cooper, 160 So.3d at 1240 (setting out standard of appellate review of ruling excluding testimony of child in a divorce case).

The mother next argues that the trial court erred in overruling her objection to a line of questioning by the guardian ad litem regarding her post-filing relationship with Gamble. The record shows that the mother did not raise an objection until the guardian ad litem had already been questioning the mother about her relationship with Gamble for several pages of the transcript, and, then, when the mother's counsel did object, he did not state a ground for the objection. "Generally speaking, in order to preserve for appellate review an issue regarding an error in the admission of evidence, an appellant must have made a timely and specific objection to the evidence at trial." Johnson v. L.O., 42 So.3d 759, 762 (Ala.Civ.App.2010). Later, the mother's counsel objected "to this entire line of questioning," stating: "It is badgering." Now, on appeal, the mother argues that the trial court erred in receiving the evidence of adultery because, she says, it was not relevant to the custody...