Williams v. Williams

• Citation: 75 So.3d 132
• Decision Date: 28 January 2011
• Docket Number: 2090629.
• Parties: Aubrey Dean WILLIAMS v. Susan Kaye WILLIAMS.
• Court: Alabama Court of Civil Appeals

75 So.3d 132

Aubrey Dean WILLIAMS

v.Susan Kaye WILLIAMS.

2090629.

Court of Civil Appeals of Alabama.

Jan. 28, 2011.

Certiorari Denied Aug. 5, 2011

Alabama Supreme Court 1100550.

Jack W. Torbert, Jr., of Torbert & Torbert, P.A., Gadsden, for appellant.

Thomas A. King, Gadsden, for appellee.

BRYAN, Judge.

Aubrey Dean Williams ("the husband") appeals from a judgment entered by the Etowah Circuit Court ("the trial court") that divorced him from Susan Kaye Williams ("the wife").

Procedural History

The parties married on May 6, 1995, and two children, both boys, were born of the parties' marriage: the older child was born in September 1999, and the younger child was born in February 2003. The parties separated on January 17, 2008, and the wife filed a complaint for a divorce on January 30, 2008. In her complaint, the wife sought, among other things, a divorce on the ground of mental cruelty, sole custody of the children, an award of child support, an award of alimony, an order preventing the husband and his family from making derogatory remarks about her to the children, an equitable division of the property located on Scrougeout Drive in Collinsville ("the Collinsville property"), and one-half of the husband's retirement benefits. Pursuant to various pendente lite orders entered by the trial court, the wife was awarded pendente lite possession of the parties' marital residence, which was located on the Collinsville property; the wife was awarded primary custody of the children pendente lite; and the husband was awarded specific pendente lite visitation. The husband subsequently filed an answer to the wife's complaint for a divorce, and he filed a counterclaim for a divorce seeking, among other things, joint custody of the children, with the husband named as the primary custodial parent, and an award of title to and possession of the Collinsville property, which the husband alleged was not marital property.

The trial court entered a judgment on December 17, 2009, that divorced the parties on the ground of incompatibility. Paragraph six of the judgment was labeled "Minimization of Emotional Trauma on [the] ... Children," and, pursuant to that part of the judgment, the parties were forbidden from saying or doing anything to influence the children about any issue presented in the divorce action. The parties were awarded joint custody of the children, the wife was designated the primary custodial parent, and the husband was awarded specific periods of visitation. The judgment also ordered, among other things, that the husband pay the wife $903 a month in child support, that the husband pay the wife $750 a month as periodic alimony, that the wife pay 81% and the husband pay 19% of unpaid medical expenses of the children, that the Collinsville property be sold, and that each party receive 50% of the proceeds from the sale of that property. The wife was awarded all the parties' household goods except the husband's personal belongings, a 2000 Sierra minivan, and 50% of the husband's retirement benefits "as determined by the value of the benefits on May 6, 1995." The husband was awarded all right, title, and interest to six different vehicles. Each party was awarded all the financial accounts in his or her name, and each party was ordered to pay all the debts that had been incurred in his or her name. Finally, the husband was ordered to pay $1,500 toward the wife's attorney's fees.

On December 18, 2009, the trial court entered a qualified domestic-relations order that assigned to the wife an amount equal to 50% of the husband's retirement benefits that had accrued under the husband's pension plan as of May 6, 1995. The husband filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., and Rule 60, Ala. R. Civ. P. The husband challenged, among other things, the award of custody, the order requiring him to pay a share of the children's unpaid medical expenses, the award of child support, the disposition of the marital residence, the awards of personal property, the award to the wife of a portion of his retirement benefits that had accrued before the parties' marriage, and the award of periodic alimony to the wife. The husband also requested that the trial court consider additional testimony at the hearing on his postjudgment motion.

On February 17, 2010, following the filing of the wife's motion to correct a clerical error, the trial court amended the divorce judgment to require the husband to pay 81%, and to require the wife to pay 19%, of the children's unpaid medical expenses. On February 23, 2010, the husband filed an amended postjudgment motion challenging the constitutionality of paragraph six of the divorce judgment, asserting that it interfered with his parental rights, that it interfered with his right to free speech, that it was vague and ambiguous, and that it was so broad that it included protected speech. Following a hearing on the husband's postjudgment motions, where the court took additional testimony from the parties' older child, the trial court denied all pending postjudgment relief requested by the husband, and the husband timely appealed.

Issues

The husband presents several issues for this court to review on appeal: (1) the award of sole physical custody of the children to the wife; (2) the award of child support and the allocation of unpaid medical expenses; (3) the division of property and the award of alimony to the wife; and (4) the constitutionality of paragraph six of the divorce judgment.

Facts

At the ore tenus hearing that was conducted on October 26, 2009, June Nichols, a psychologist who had counseled the children, testified that when she first met the parties' older child he was "a very upset young man." She described him as worried and stressed about everything, and she stated that the source of the older child's stress was his relationship with the husband and "this going back and forth." Nichols stated that the children loved both parents but that the older child felt tension in his relationship with the husband and felt that the husband placed responsibility for the younger child on him. According to Nichols, those issues needed to be resolved, and, because the children had been primarily under the care of the wife during the pendency of the divorce action, she saw no reason to change their custodial arrangement.

The wife testified that she had filed for a divorce from the husband because he had mentally abused her, because he was controlling, and because she was afraid of him. The wife testified that she had been the primary caretaker of the children and that the husband had told her, before the older child was born, that he would not care for their children until the children turned three or four years old because they would not remember who cared for them before that point. The wife also stated that the husband did not help the children with their homework because he did not think that the children should have homework until they were in the fourth grade. She testified, however, that she had helped the children with their homework and that the older child had made all As and Bs and that the younger child had made straight As. The wife maintained that the husband had talked to the children about the divorce, that the husband and his family had said that the wife was crazy in front of the children, and that the husband had allowed the older child to read his counterclaim for a divorce.

The husband alleged that he had cared for the children most of the time when they were growing up and that he played sports with the children as often as possible. The husband admitted that he had taken the children to his attorney's office because he was concerned about them, and, although he denied letting the children read the divorce pleadings, he stated that he did discuss the divorce with the children. The husband alleged that the older child had gained approximately 55 pounds since the wife had filed for a divorce, and the husband attributed the older child's weight gain to the older child's propensity to spend several hours a day playing video games instead of getting more exercise. The husband also alleged that his father ("the paternal grandfather") had been admitted to the hospital shortly after the wife had filed for a divorce and that the wife had refused to allow the children to visit the paternal grandfather in the hospital when it became certain that the paternal grandfather would die. After the wife was awarded pendente lite possession of the parties' marital residence, the husband lived with his mother from February 2008 through November 2008, and then he moved into a camper on the Collinsville property. The husband stated that he spent his visitation time with the children at his mother's home.

The parties maintained separate financial accounts throughout their marriage. The evidence indicated that the parties had two accounts with A.G. Edwards, a brokerage firm, one account in the husband's name and one account in the wife's name, that were created as college-fund accounts for the children. The husband also had separate financial accounts with three other financial institutions—Merrill Lynch, Morgan Keegan, and First Southern Bank—that were not used to benefit the marriage, which totaled approximately $16,500. The husband had a savings account and a checking account with a combined total of approximately $12,700. The husband agreed that the wife should be awarded her 2000 Sierra minivan, but he asked to be awarded approximately six vehicles that were in his name, asserting that the wife did not contribute any funds to purchase the vehicles and that she did not use the vehicles.

The wife was self-employed and worked from the home. The wife testified, and her 2008 federal income-tax return revealed, that the wife earned approximately $24,000 in 2008 but that her gross income in 2008, after proper self-employment deductions were made, was $12,185, or approximately $1,015 a month. The wife agreed...