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White v. White

Alabama Court of Civil Appeals

May 18, 2018

Jarrod Joel White
v.
Kimberly Henderson White

          Appeal from Mobile Circuit Court (DR-12-901095)

          THOMAS, JUDGE.

         Jarrod Joel White ("the father") and Kimberly Henderson White ("the mother") were married in 2010. There are two children of the marriage ("the children") -- a son ("the son"), born in June 2011, and a daughter ("the daughter"), born in July 2012. The mother also has an older son ("the mother's older son") from a previous relationship. In 2012 the parties separated, and, in November 2012, the father filed a complaint in the Mobile Circuit Court seeking, in pertinent part, a divorce from the mother, an award of custody of the children, and an award of child support. He also filed a motion in which he alleged that the mother had endangered, or had threatened to endanger, the children and requested an award of pendente lite custody of the children subject to the mother's visitation, exclusive possession of the marital residence while the action was pending, and an award of pendente lite child support. The circuit court held a hearing on the motion and awarded the father the relief he sought, except that it did not order the mother to pay pendente lite child support.[1] Thereafter, the mother filed an answer to the father's complaint and a counterclaim seeking, in pertinent part, a divorce from the father, an award of "primary" physical custody of the children, and an award of child support.

         A prolonged period of contentious discovery commenced, during which the father maintained pendente lite custody of the children. Numerous continuances were requested and granted, and the circuit court required the parties to participate in mediation. In May 2016 the circuit court entered an order informing the parties that it would grant no further continuances and setting an August 30, 2016, trial date; however, it later entered an order granting another continuance, setting a November 15, 2016, trial date, and informing the parties that there would be "absolutely no resets."

         When the three-day divorce trial began, the son was five years old and the daughter was four years old. The divorce trial began on November 15, 2016, and continued on December 2, 2016. At the close of testimony on December 2, 2016, the circuit-court judge orally acknowledged that the divorce trial had not reached completion and said: "I'm doing away with the [father's pendente lite custody award]. I'm giving [the parents] joint legal custody of their children. It's going to be joint custody. One week with one parent. One week with the other parent." The divorce trial ended on April 18, 2017.

         On April 26, 2017, the circuit court entered a final judgment that, in pertinent part, divorced the parties, awarded them joint custody of the children, and ordered them to exchange physical custody of the children on an alternating weekly basis. The circuit court ordered the father to pay the children's health-insurance costs and

"the amount of $1, 372.80 each month as child support effective May 1, 2017. (Child support is in compliance with the Guidelines of Rule 32, [Ala. R. Jud. Admin., ] with the split custody.)"

         The father filed a timely postjudgment motion. The circuit court held a hearing on the motion and entered an order modifying certain provisions of the judgment that are not relevant to this appeal, and the father filed a timely notice of appeal. He seeks our review of whether the evidence presented supports an award of joint custody of the children, whether the circuit court miscalculated his child-support obligation, and whether the judgment contains an ambiguity that the circuit court refused to clarify.

         First, we consider whether the evidence presented supports an award of joint custody of the children.[2] Our legislature has indicated that joint-custody arrangements are favored, § 30-3-150, Ala. Code 1975, and should be considered in every child-custody case, § 30-3-152(a), Ala. Code 1975.

"In original divorce actions, the parties stand on an equal footing with no presumption of entitlement to custody inuring to either parent. See Ex parte Couch, 521 So.2d 987, 989 (Ala. 1988); see also Smith v. Smith, 727 So.2d 113, 114 (Ala. Civ. App. 1998). The primary concern in making an initial determination of child custody incident to a divorce action is the best interests of the children. See Couch, 521 So.2d at 989; see also C.B.B. v. J.S.D., 831 So.2d 620, 621 (Ala. Civ. App. 2002). To that end, the trial court is given wide discretion in awarding custody and establishing visitation, and its determination of such matters will not be reversed absent a showing of a clear abuse of discretion. See Kovakas v. Kovakas, 12 So.3d 693, 697 (Ala. Civ. App. 2008); see also Kent v. Green, 701 So.2d 4, 5 (Ala. Civ. App. 1996).
"The ore tenus rule is based, in part, on the unique position of the trial court to personally observe the parties and witnesses and to assess their demeanor and credibility. See Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001); see also Kent, 701 So.2d at 5. Additionally, '"[i]n child custody cases especially, the perception of an attentive trial judge is of great importance."' Fann, 810 So.2d at 633 (quoting Williams v. Williams, 402 So.2d 1029, 1032 (Ala. Civ. App. 1981)). Factors to be considered in making a child-custody award include the age and sex of the children; their emotional, social, moral, material, and educational needs; and the characteristics of those seeking custody, including their age, character, stability, mental and physical health, and their respective home environments. See Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981)."

Lowery v. Lowery, 72 So.3d 701, 704-05 (Ala. Civ. App. 2011).

         The father testified that he had been unhappy in the marriage because the mother emotionally and verbally abused him, damaged the marital residence by throwing and breaking things in anger, and spoke negatively about him and his family to the children. He also criticized the mother for not attending church or graduating from college and for abusing alcohol, prescription medication, and cocaine.

         The mother testified that she had been unhappy in the marriage because the marital residence was unimproved and unsafe and unsanitary for the children. She said that "vagrants" lived in an outbuilding in the backyard, which was cluttered with lumber, nails, paint cans, boats, trailers, and rotting vehicles. She criticized the father for going to bars after work, for not cleaning up after his cats, and for leaving ...


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