Vest v. Vest

• Citation: 215 So.3d 552
• Decision Date: 01 July 2016
• Docket Number: 2150113.
• Parties: Stuart VEST v. Alicia VEST.
• Court: Alabama Court of Civil Appeals

215 So.3d 552

Stuart VEST

v.Alicia VEST.

2150113.

Court of Civil Appeals of Alabama.

July 1, 2016.

Stephen F. Brown, Decatur, for appellant.

Thomas H. Guthrie, Athens, for appellee.

DONALDSON, Judge.

Stuart Vest ("the husband") appeals from the divorce judgment of the Limestone Circuit Court ("the trial court") granting the husband and Alicia Vest ("the wife") joint legal custody of K.V. ("the child"), granting the wife sole physical custody of the child, ordering the husband to pay child support, and granting the husband visitation with the child. The cost of child care was included in the child-support calculation, but there is no evidence in the record indicating that child-care costs will be incurred. We therefore reverse the portion of the judgment ordering the husband to pay child support and remand the cause to the trial court for it to make a new child-support determination. We affirm the other aspects of the judgment.

Facts and Procedural History

The husband and the wife were married in February 2007, and the child was born on August 28, 2010. On September 9, 2014, the husband filed a complaint for a divorce in the trial court, requesting sole physical custody of the child and child support. The wife filed a counterclaim for a divorce in which she requested sole physical custody of the child and child support.

On November 25, 2014, the husband filed a motion for an order requiring each party to take a drug-screening test. After a hearing, the trial court entered an order on December 9, 2014, granting the husband's motion and ordering each party to submit to a drug-screening test. The results of each party's test were negative for drugs that had not been prescribed to that party.

On February 3, 2015, the trial court conducted a pendente lite hearing in which only the husband and the wife testified.

Their testimony reflected the following facts. The husband worked as an electrician and foreman. The wife worked in an automobile-manufacturing plant. She alternated between two weeks of day shifts and two weeks of night shifts. The parties separated in September 2014. Afterward, the husband continued living in the marital residence in Athens, and the wife lived with her parents in the City of Madison. The parties had informally agreed that the wife would care for the child during the two-week period when she worked day shifts and that the husband would care for the child when the wife worked night shifts. On February 20, 2015, the trial court entered a pendente lite order that continued the parties' informal custodial arrangement.

On August 5, 2015, the wife filed a motion to enroll the child in a Madison County school to attend kindergarten. The husband filed an objection, asserting that he had enrolled the child in a school in Athens.

On August 19, 2015, the trial court conducted a trial. At the trial, the husband reiterated his request for sole physical custody of the child and for child support. In the event that he was granted sole physical custody, the husband requested permission to relocate to Eva, Alabama, where his parents lived and where he intended to move. The husband presented testimony from the child's former day-care teacher, his boss, the pastor from his church, several friends, his stepfather, and his mother. Their testimony showed that the husband had a loving relationship with the child, that the husband and the child participated in activities together such as fishing, that the child was respectful of the husband, and that the husband took care of the child. The husband's mother testified that, in the past year, the husband had "stepped up" as a father.

The wife and the husband lived with the wife's parents before they purchased their marital residence. The wife's mother testified that she and her husband helped the wife care for the child. The neighbor of the wife's parents ("the neighbor") testified that she often participated in the family gatherings at the wife's parents' house. The wife's mother and the neighbor testified that the wife had a loving relationship with the child, that the wife and the child participated in activities together, and that the wife took care of the child. They and the wife testified that, before the wife and the husband separated, the wife was the primary caretaker of the child. The wife's mother testified that, on one or two occasions, she had had to wake up the wife to take care of the child. The wife, the wife's mother, and the neighbor all testified that, during the marriage, the husband often had pursued hobbies such as hunting, fishing, or softball so that he was not around his family during many weekends and some holidays. The wife testified that she had agreed not to keep the husband from his hobbies, but, in her opinion, he pursued them excessively.

The husband testified regarding a few occasions when, he alleged, the wife had been drunk and regarding another occasion during which, he said, she had smoked synthetic marijuana. The husband testified that he drank alcohol on occasion and that he had smoked marijuana in high school. The husband testified that he had been taking pain medication for arthritis in his back. The wife testified to having back problems also and to having taken the husband's pain medication on occasion. The wife testified that the husband was addicted to his pain medication, that he often ran out of the medication before the next prescription was set to be filled, and that he purchased pain medication to use in addition to the pain medication he was prescribed. The neighbor testified that the husband had asked to purchase some of her pain medication but that she had refused each time. The husband denied any addiction to his pain medication. He submitted copies of prescriptions dated March, June, and July 2015, each for 90 pain-medication pills, that, he testified, he did not fill. He testified that, on average, he took pain medication four days a week.

The husband testified that, before the marriage, he had served in the Army and Army Reserves for 13 years and that his service included tours in Iraq. The husband's boss testified that he had not seen signs of depression or violence from the husband. Although the husband confirmed in his testimony at the pendente lite hearing that he had killed women and children in the line of duty, at trial he testified only to having killed women, not children, while in combat in Iraq. He denied that his military experience had had an effect on his emotional well-being, and he testified that he had never been diagnosed with post-traumatic stress disorder. The husband testified that he would be willing to seek counseling as a condition to receiving sole physical custody of the child.

The wife testified that the husband was often depressed and quiet. She testified that he would have flashbacks at night and that she had to be very careful when waking him up while he was having a flashback. She testified that, on one occasion, the husband had kicked her and broken her ribs while she was trying to wake him up. She testified to blocking certain television channels because some shows would cause the husband to have flashbacks. She testified to asking the husband several times to seek counseling, but, she stated, he refused to do so. The husband testified that, when the child was in his custody, he and the child sometimes shared the same bed.

The wife testified to an occasion when the husband became upset and punched a hole in a wall in their house because she had had a drink with a coworker after work. The wife's mother and the neighbor both testified that, when the wife and the husband were living with the wife's parents, the husband had beaten the wife's dog with his fists for 10–15 minutes because the dog had left the yard through an open gate. The wife and the husband testified to a time when the child had bruises on his backside that included bruises above the belt line. The wife testified that, while the child was in the husband's custody, the husband had informed her that a teacher at the child's day-care center had paddled the child. The wife called the Department of Human Resources ("DHR"), but DHR did not find an indication of abuse in its investigation of the day-care center.

The child began attending kindergarten full time a week before the trial. The parties had disagreed on the school that the child would attend. The wife initially enrolled the child in the Madison County school system. The husband canceled the child's registration as a student in the Madison County school system and instead enrolled the child in a school in Limestone County. The parties took turns canceling the child's registration and enrolling the child in the school system of their choice. The husband testified that, if granted sole custody of the child, he would have to transfer the child to another school system when he moved to Eva. He testified that the transfer would be a negative experience for the child, acknowledging that there would be no transfer if the mother had sole physical custody and the child attended a Madison County school.

The husband testified that, since the child began school, his work schedule enabled him to pick up the child after school and that the child had not attended day care since starting school full time. The wife's mother testified that she took care of the child when the wife was unavailable during her custodial periods. On the day of the trial, the mother submitted a CS–41 Child–Support–Obligation Income Statement/Affidavit form ("CS–41 form") that stated "none" for child-care costs related to employment. The husband testified that at the pendente lite hearing he had submitted a CS–41 form stating $100 as the amount of child-care costs related to employment but that the CS–41 form he submitted on the day of the trial contained a zero amount for child-care costs. The husband's CS–41 forms are not available in the record.

On August 27, 2015, the trial court entered a judgment divorcing the...