Sabrina W. Stover
Richard Dennis Stover
Appeal from Morgan Circuit Court (DR-12-900193)
On February 4, 1983, Richard Dennis Stover ("the father") and Sabrina W. Stover ("the mother") were married. There are two children of the marriage. On February 5, 2012, the father informed the mother that he had been engaged in a adulterous relationship with Sophia Clemmons for over three years. The parties separated in March 2012, and, on September 5, 2012, the father filed in the Morgan Circuit Court a complaint seeking a divorce from the mother. At the time the father's complaint was filed, the parties' older child was an adult; however, their younger child was 17 years old. After the separation the older child resided with the father; the younger child, who suffers from a severe form of Glucose Transporter Type 1 Deficiency Syndrome, resided with the mother.
According to the father's complaint, the parties' relationship had deteriorated to the point that they could not communicate. The father asserted that the mother had engaged in domestic violence against him, had cursed at him in the younger child's presence, had filed a false protection-from-abuse petition against him, and had harassed him by telephone and by text messages. The father requested a divorce from the mother, an award of custody of the younger child, an order requiring the mother to attend a series of parenting classes, an award of child support, and a division of the assets and debts of the marriage.
On September 18, 2012, the mother filed an answer to the father's complaint, denying his allegations and asserting that the father was at fault for the breakdown of the marriage. She filed a counterclaim seeking a divorce from the father, in which she alleged that he had physically and emotionally abused her during the marriage, that he had harassed her by telephone and by "text" messages, and that he was not capable of caring for the younger child. The mother requested custody of the younger child, an award of child support, an award of alimony, a division of the assets and debts of the marriage, and an award of attorney fees. The father filed a answer to the mother's counterclaim.
On January 9, 2013, the father filed a motion seeking pendente lite custody of the younger child. He asserted that the mother had "periodically" exhibited "irrational" or "physically combative" behaviors toward him during custody exchanges. The father asserted that, although the parties had relocated the custody exchanges to the police station, the mother's behavior had not improved. Furthermore, according to the father, the mother's protection-from-abuse action had been dismissed because the mother had failed to appear at the hearing on the matter.
The mother filed a response to the father's motion, asserting that she was the younger child's primary caregiver and again asserting that the father was not capable of exercising custody of the younger child. According the mother, she had agreed to "dismiss" the protection-from-abuse action because the father had convinced her that if she had pursued the action he could lose his job and, therefore, the younger child's insurance coverage. The mother requested a finding of contempt against the father because, she said, the father had continued to harass and antagonize her. The father denied that he had harassed the mother.
The divorce trial was held on September 3 through 4, 2013, and on September 12, 2013; however, the circuit court had not entered a judgment on December 20, 2013, when the father filed a second motion seeking custody of the younger child, alleging that employees of the younger child's school had observed unexplained bruising on the younger child's legs four or five times since August 2013. The father attached the affidavits of Mary Hillis, the assistant principal of the younger child's school, and Sheila Lindsey, an aide at the younger child's school. Hillis and Lindsey each testified that when she was asked how she got the bruises, the younger child had cried and stated: "Mommy hurt."
The mother filed a response the father's motion in which she denied that she had caused the younger child's bruises. She asserted that the younger child's mobility issues regularly caused her to bump into objects and suffer bruises. Furthermore, she asserted that the younger child did not speak in two-word sentences and that the younger child referred to her as "muh" and never as "mommy." On February 18, 2014, the mother filed a report in the circuit court, which indicated that the Lawrence County Department of Human Resources ("DHR") had investigated the father's allegation against her and that DHR had returned a finding of "No merit."
On February 20, 2014, the circuit court entered the divorce judgment, which it amended that same day to correct a clerical error. The circuit court, in pertinent part, divorced the parties and awarded the parties joint custody of the younger child. It ordered the father to pay the mother $125 in child support, and it declined to award alimony to the mother. It also declined to award the mother any portion of the father's retirement account with Great-West Retirement Services ("the Great-West retirement account") upon its finding that the mother had failed to provide proof of the present value of the Great-West retirement account as of the date the father filed the divorce complaint.
On March 7, 2014, the mother filed a motion to alter, amend, or vacate the judgment, and she filed a notice of appeal on March 26, 2014. The notice of appeal was held in abeyance until the mother's postjudgment motion was denied by operation of law. See Rule 4(a)(5), Ala. R. App. P. On appeal, the mother seeks our review of the following aspects of the circuit court's judgment: the award of joint custody of the younger child, the calculation of child support, the refusal to award the mother any portion of the Great-West retirement account, the refusal to award alimony to the mother, and the division of property.
Joint Custody of the Younger Child
"Alabama law gives neither parent priority in an initial custody determination. Ex parte Couch, 521 So.2d 987 (Ala. 1988). The controlling consideration in such a case is the best interest of the child. Id. In any case in which the court makes findings of fact based on evidence presented ore tenus, an appellate court will presume that the trial court's judgment based on those findings is correct, and it will reverse that judgment only if it is found to be plainly and palpably wrong. Ex parte Perkins, 646 So.2d 46 (Ala. 1994). The presumption of correctness accorded the trial court's judgment entered after the court has heard evidence presented ore tenus is especially strong in a child-custody case. Id."
Ex parte Byars, 794 So.2d 345, 347 (Ala. 2001).
The father testified that the younger child was born on April 11, 1995, with "special needs, " although the specific disorder was not officially diagnosed until 2007. The father said that the mother had traveled to five states and to China seeking a diagnosis and treatment for the younger child and that he had stayed at home with the older child. It was undisputed that by 2003 the mother was not employed and that she was receiving a monthly Social Security disability benefit for her diagnosis of ankylosing spondylitis. The father admitted that the mother was the younger child's primary caregiver and that he was the family's "primary earner."
The father testified that the mother would curse and berate him at custody exchanges and that she would throw the younger child's food and clothing, which made the younger child cry. The older child said that the custody exchanges were "awkward yelling match[es] about nothing"; she faulted the mother for failing to focus on the younger child. The mother agreed that the custody exchanges were hostile, but, according to her, the father made her lose her temper by repeatedly whispering "dirty words" or attempting to run over her with his truck. The father said that he had begged the mother to stop using "sexually graphic words" to describe his commission of adultery in the younger child's presence but that she had refused. The older child said that the ...