Washington v. Washington

• Decision Date: 29 May 2009
• Docket Number: 2070718.
• Parties: Irilmoskomazzarella WASHINGTON v. Anita WASHINGTON.
• Court: Alabama Court of Civil Appeals

24 So.3d 1126

Irilmoskomazzarella WASHINGTON v. Anita WASHINGTON.

2070718.

Court of Civil Appeals of Alabama.

May 29, 2009.

Kelli F. McDaniel, Montgomery, for appellant.

Roderick B. Perdue, Wetumpka, for appellee.

PER CURIAM.

Irilmoskomazzarella Washington ("the husband") appeals from an order of the Elmore Circuit Court divorcing him from Anita Washington ("the wife") insofar as it divided the parties' property, awarded the wife child support and custody of the parties' minor son, and failed to award the husband alimony.

Procedural and Factual Background

The parties were married on August 16, 1997, and one child was born out of the marriage—a boy, born in January 2000 ("the son"). On March 28, 2006, the husband sued the wife for a divorce on the grounds of incompatibility of temperament, irretrievable breakdown of the marriage, and physical abuse.¹ The husband's divorce complaint asked the trial court to equitably divide the parties' property, to equitably divide the parties' debts, and to award the parties joint legal custody of the son, with primary physical custody to the husband, and to award the husband child support in accordance with Rule 32, Ala. R. Jud. Admin. The husband also asked the trial court for temporary physical custody of the son and child support during the pendency of the divorce proceedings.

The wife counterclaimed for a divorce and asked the trial court to, among other things, award her physical custody of the son, award her child support for the benefit of the son, award her alimony, and order the marital residence to be sold and the proceeds of the sale to be equitably divided.

The trial court issued a pendente lite order on November 9, 2006, granting joint legal custody of the son to the parties, with the son's primary residence with the husband, subject to specified visitation rights of the wife. The wife was ordered to pay $250 a month in child support in accordance with an agreement the parties had reached in mediation.

On April 10, 2007, the wife filed a motion seeking emergency custody of the son, alleging that the son had been in her exclusive custody for 12 consecutive days because the husband was hospitalized but would not inform the wife of his medical condition or when he thought he would be released from the hospital. On April 18, 2007, the trial court entered a pendente lite order awarding physical custody of the son to the wife.² The trial court denied the husband's motion to reconsider the award of custody of the son to the wife.

The husband subsequently amended his complaint for a divorce to request an award of alimony and to include as grounds for the divorce emotional and mental cruelty; physical cruelty; adultery; emotional, physical, and financial neglect; and abandonment.

After conducting two ore tenus hearings, the trial court, on January 16, 2008, entered a judgment divorcing the parties on the ground of incompatibility of temperament.³ The divorce judgment, among other things, granted the parties joint legal custody of the son, "with primary residence of [the son] being placed with the [wife]," subject to visitation rights of the husband; ordered the husband to pay $102.71 per month in child support; awarded the husband "exclusive use of the marital residence," with an order to pay the debt thereon; ordered the husband to "refinance the debt on the marital residence within 100 days and ... pay to [the wife] the sum of $56,375.50 as her part of the net equity" in the residence; awarded the wife the parties' jointly owned timeshare; awarded the wife the parties' jointly owned Janus fund; awarded the husband the parties' jointly owned "Grady property"; and awarded the parties certain vehicles, subject to the debts on those vehicles.

On February 14, 2008, the husband filed a motion to alter, amend, or vacate the judgment or, in the alternative, a motion for a new trial and requested a stay of execution of the trial court's divorce judgment. On February 15, 2008, the wife filed a "Motion to Amend/Supplement Final Decree of Divorce (Rule 59[, Ala.R. Civ. P.]) [and] Motion to Show Cause." The wife alleged that the husband would not be able to refinance the debt on the marital residence because he had intentionally failed to pay the mortgage on the residence.

The trial court conducted a hearing on the parties' postjudgment motions, and on March 26, 2008, the trial court issued an order amending the final judgment of divorce. The trial court, among other things, ordered the sale of the marital residence, but it allowed the husband to have continued use of the marital residence until it sold; the trial court ordered the husband to pay the wife $56,375.50 from the sale proceeds, and the remaining balance of the sale proceeds were awarded to the husband.

The husband filed his notice of appeal to this court on April 25, 2008. The husband alleges five issues on appeal: 1) that the trial court exceeded its discretion in awarding physical custody of the son to the wife, 2) that the trial court erred as a matter of law in awarding child support to the wife, 3) the trial court exceeded its discretion in the division of the marital property and in its failure to award alimony to the husband, 4) that an order entered by the trial court on April 23, 2008, is void, and 5) that an order entered by the trial court on October 20, 2008, is void.⁴

The testimony presented to the trial court revealed the following pertinent facts. The wife was 41 years old at the time of the final hearing, and she is a retired member of the United States Air Force; she was on active duty during a large part of the parties' marriage. The husband was 49 years old at the time of the final hearing, and he had not had a job since 2003. The husband received a back injury during his service in the United States Army, and at the time of the final hearing his only income was disability benefits from the Social Security Administration and from the Veteran's Administration ("the VA"). The husband was the primary caretaker of the son because the wife worked full time.

The wife denied having a violent temper, but she did admit to hitting the husband on his arm, on one occasion in 1998, because the husband would not communicate with her. The wife stated that she "hit him about four times, open hand, on his arm as he blocked." The husband testified that the reason the wife hit him on that one occasion was because he went to a bar after work and stayed out late, without telling the wife where he was. In his testimony he stated: "she came over [to the bed] and started beating on me and saying that I could have at least told her that I was going out because something could have happened ...."

The wife characterized the husband as both "suicidal" and "homicidal." She testified that, at one point during an argument, the husband had put his hands around the wife's neck "in a choking method." The wife testified, that during her struggle to remove the husband's hands from around her neck, they had both fallen onto their bed, which broke.

The wife further testified that the husband always carried a loaded gun in the driver's side door pocket of his vehicle. She further alleged that the husband had attempted to leave the son alone in the vehicle with the loaded gun while the parties went inside a store.

The wife testified that she had been diagnosed with thyroid cancer in 2005 and that her treatment had required two surgeries to remove the cancerous gland and three courses of radiation—one in August 2005, one in January 2006, and one in January 2007. The wife testified that her cancer is now in remission. The wife stated that the husband had been the primary caregiver to the son during her radiation treatments because her doctor had warned her that the radiation could have a harmful effect on the son; therefore, the wife decided to stay in a hotel for approximately one week after her radiation treatments. The wife also admitted that the husband had been the primary caregiver to the son while she was on active duty in the Air Force and that the husband had done the majority of the cooking after she retired from the military.

After the husband filed for a divorce in March 2006, the husband and the wife continued to live in the marital residence. The wife testified that, during that time, the parties had frequently gotten into arguments and that the police had been called on several occasions. As a result, the parties discussed the need for one of them to move out of the marital residence, and the wife agreed to find an apartment. The parties discussed the fact that the wife's name was on most, if not all, of the utility bills for the marital residence; the wife testified that she and the husband had agreed to have the name on the utility bills changed to the husband's name so the wife could activate utility services at the apartment she had planned to rent. This did not require the utilities to be "cut off" as the husband alleged.

While the wife took the son to Disney World on vacation in August 2006, the husband changed all the locks to the marital residence. Upon their return, the husband allowed the wife and the son inside the marital residence, but after the wife took the son to school the next morning, she was unable to gain reentry into the marital residence. The wife was forced to move into the one-bedroom apartment where her 20-year-old son lived.⁵ She testified that there was no room for the son in her older child's apartment. She stated that she had had no choice but to leave the son with the husband because she had thought it would be in the son's best interest to keep his living environment as stable as possible. The wife subsequently bought a three-bedroom home but she testified that the husband had refused to allow her to take any of the furnishings from the marital residence.

The husband had custody of the son from August 2006 until April 2007, when the wife filed an emergency petition...