Released for Publication April 13, 2015.
Appeal from Lauderdale Circuit Court. (DR-09-671). William F. Jackson, Trial Judge.
APPLICATION GRANTED; NO OPINION ORDER OF AFFIRMANCE OF MAY 9, 2014, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
For Appellant: Thomas M. Di Giulian, Decatur.
For Appellee: Lindsey Mussleman Davis of Holt, Mussleman, Kelley & Morgan, Florence.
DONALDSON, Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.
On Application for Rehearing
The no-opinion order of affirmance of May 9, 2014, is withdrawn, and the following is substituted therefor.
Mark Cooper (" the husband" ) appeals from a judgment of the Lauderdale Circuit Court (" the trial court" ) divorcing him from Diana Cooper (" the wife" ). Among other things, the judgment addressed the division of the parties' marital property, child custody, child support, and alimony. The husband contends that the judgment should be reversed because (1) he was prohibited from presenting testimony at trial from the minor children of the parties,
(2) the wife should not have been awarded periodic alimony, and/or (3) the wife should not have been awarded physical custody of the children. We affirm the trial court's judgment.
The following facts are pertinent to the issues raised on appeal. The wife and the husband married in 1988. Two children were born of the marriage: a son, C.H.C., born in 1999, and a daughter, M.A.C., born in 2000. The wife filed a complaint for a divorce from the husband in the trial court in September 2009, alleging as the ground an incompatibility of temperament between the parties. In her complaint, the wife sought, among other relief, an order awarding custody of the children to her, a division of the martial property, alimony, and child support.
In October 2009, the trial court entered a " Preliminary Order" addressing certain issues pendente lite. Regarding custody of the children, the order provided:
" The Court strongly suggests that children be allowed to continue to reside in the parties' marital/family residence during the pendency of this action in the custody of the parent who traditionally has provided the child(ren)'s principal care and control prior to the initiation of this action. If the parties cannot agree on which parent will remain in the marital residence with the children, each party shall be entitled to reside in the marital residence until further order of the court."
The parties lived together with the children in the marital residence until November 2010, when the wife moved with the children from the martial residence to an apartment. In December 2010, the wife filed a motion with the trial court seeking an order permitting her to move from the martial residence with the children. In the motion, the wife alleged that the living arrangement in the marital residence had become unreasonably tense and noted that the children would continue to attend the same school following her move. In support of her request, the wife alleged:
" [T]hat the [husband] is disabled and suffers from various maladies, which include PTSD [post-traumatic stress disorder]. The [wife] has recently learned that the [husband] has been hearing 'voices of old friends.' The [husband] has also advised the wife that he has experienced an 'out of body' experience. As a result of these disorders, coupled with the medications which he takes, he is not physically or emotionally equipped to care for the children on a 24/7 basis. He is capable of assisting with the children and the [wife] intends for his relationship with the children to continue."
The trial court entered an order granting the wife's request to move with the children to the apartment and granting the husband specific " parenting time with the children." The order appears to have been entered the same day the motion was filed and without prior notice to the husband. The husband responded with an objection to the order and a counterclaim seeking physical custody of the children. The children lived with the wife in a separate residence from November 2010 throughout the remainder of the proceedings.
The trial was conducted over five days between October 2011 and June 2012. Before the trial, the parties submitted a joint memorandum to the court purporting to resolve all issues concerning the division of their marital property and marital debt. However, an issue arose concerning a debt allegedly owed to the wife's mother. The husband's counsel stated at trial that the husband thought all issues had been resolved other than child custody, and the court responded that the memorandum
would be accepted " only as a reference point." Later in the trial, the parties indicated to the trial court that the memorandum was mutually acceptable. The memorandum concerning the division of the parties' marital property and marital debt was adopted in the final judgment, and neither party challenges the division of property or debt on appeal.
Testimony showed that the husband, who was in his mid-50s at the time of the trial, became employed by the United States Postal Service before the marriage. At the time of his employment, the husband was receiving compensation from the Department of Veterans Affairs due to a skin condition he had acquired during military service that left him partially disabled. Approximately 18 months after he married the wife, he was terminated from employment with the Postal Service because he had allegedly provided false information on his application for employment. He did not work again in any capacity. In 1995 or 1996, the husband was determined to be 100% disabled by the Department of Veterans Affairs due to unspecified medical reasons. The husband regularly took several prescription medications for attention-deficit disorder and anxiety as well as for his skin condition. The husband testified that he had seen 9 or 10 psychiatrists in an attempt to regulate his medications. The husband testified that he did not know the reason why he had been determined to be totally disabled, although he testified that the maximum disability percentage possible for his skin condition was 50%.
On his child-support documentation, the husband listed an average monthly income of $4,302, or $51,624 in annual income. On appeal, the husband argues that his monthly income was $4,497. Although various amounts were given over the course of the trial, it was undisputed that the husband paid the health-insurance premiums for the children in an approximate amount of $313 per month. The husband claimed that his monthly expenses exceeded his monthly income by six dollars. His trial testimony regarding the nature of those expenses was sparse and disjointed.
Testimony showed that the wife had been forced to become employed when the husband was terminated from his employment, that she had been employed throughout most of the marriage, and that the wife had had to return to work soon after the birth of each child. At the time of the trial, the wife was employed as an office manager for a physician. The child-support-guideline forms showed the wife's average monthly income to be $2,562, or $30,744 annually. At trial, the wife testified that, based on a recent raise, she estimated that she earned $2,800 per month. The wife initially estimated that her monthly expenses exceeded her monthly income by $1,000, but in later testimony she stated that her expenses exceeded her income by " six to seven hundred" dollars. The wife requested $433 per month in alimony from the husband.
The primary dispute throughout the trial focused on physical custody of the children. The testimony was in conflict regarding the proper parent to have primary physical custody of the children. Both the husband and the wife testified as to their respective merits for serving in that capacity, and as to the respective demerits of the other spouse for serving, and both parties called other witnesses in attempts to bolster their positions. The husband testified that he would routinely take the children to school and pick them up after school. The husband also stated that he was responsible for ensuring that the children did their homework. Following the separation in November 2010, the husband testified, the wife took the children to
school and the husband picked up the children after school while the wife worked. The children alternated spending weekends with the parents. It was the husband's position that, although the wife was a good mother and the children had a good relationship with her, he was more active in the lives of the children and provided more of the daily care for them.
In contrast, the wife contended that the husband had not been the primary caregiver for the children but that she was the primary nurturing parent. The wife testified that, before the separation and despite her work schedule, she was responsible for getting the children up and ready for school, for the children's bathing and bedtime routines, for the children's medical needs, for taking the children to school, and for the children's laundry and clothing needs. The wife also presented evidence indicating that the husband had a violent temper and was prone to violent outbursts that had been witnessed by the children. The wife described the husband's punching holes in walls and breaking chairs. The wife also testified that, before the separation, she and the children would often lock themselves in a room to avoid contact with the husband if he was acting violently and that she was often in fear of the husband. The wife presented evidence indicating that the husband often behaved irrationally and exhibited strange behaviors such as hoarding possessions and claiming to hear voices. She described occasions when the husband would not be in control of his actions because of severe panic attacks. The wife also alleged that the husband watched pornography on a computer that was accessible to the parties' daughter.
The trial court heard testimony from several witnesses, in addition to the parties, on the issue of child custody. The husband presented testimony from his brother, who thought the husband appeared to be the primary caregiver for the children when he visited the martial home. The husband also presented testimony from a principal and a teacher at a school attended by the children. The principal testified that he had observed the husband picking the children up from school in the afternoons. The teacher testified that the husband regularly attended school functions during the school day and that he had had no contact with the wife. The husband also presented testimony from three male neighbors and a female neighbor who lived near the marital residence. The neighbors stated that the husband appeared to have a good relationship with the children. The neighbors said that they had had limited contact with the wife.
The wife presented testimony from a friend of the family whose observations were that the wife was the primary caregiver for the children. The friend also testified that the husband belittled the wife in front of the children and had an unreasonable and exaggerated perception of his contributions to the parenting responsibilities within the family structure.
There was an indication that the grades of one of the children had begun to decline since the parties' separation. However, the evidence showed that both children were well adjusted, thrived academically in school, and participated in other activities.
Before trial, the husband filed a motion in April 2011 seeking the appointment of a guardian ad litem to represent the children. In that motion, the husband's counsel asserted that the appointment would be " beneficial for the minor children." The trial court denied the motion. Shortly thereafter, in May 2011, the husband filed a second motion to appoint a guardian ad litem. In that motion, the husband offered to pay the full cost of the guardian ad litem's services and stated:
" The Guardian ad litem would prevent the children from having to testify in open court and would also allow the children to express their desires to a neutral party who is representing them as opposed to being placed in an adversarial position where they will have to testify as to which parent they wish to reside with."
That motion was granted. The first attorney appointed to serve as the children's guardian ad litem withdrew due to a conflict of interest. A second attorney was then appointed to serve as ...