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A.M. v. M.G.M.

Alabama Court of Civil Appeals

December 6, 2019

A.M.
v.
M.G.M.

          Appeal from Mobile Circuit Court (DR-18-900075)

          MOORE, JUDGE.

         A.M. ("the wife") appeals from a judgment entered by the Mobile Circuit Court ("the trial court") divorcing her from M.G.M. ("the husband") . We affirm the judgment in part and reverse it in part.

         Procedural History

         On January 23, 2018, the husband filed a complaint seeking a divorce from the wife. The next day, the wife filed an answer and a counterclaim for a divorce.

         On May 14, 2018, the trial court entered an order awarding the wife pendente lite physical custody of the parties' three children and awarding the husband pendente lite visitation with the three children. The trial court also ordered the husband to pay pendente lite child support in the amount of $2, 000 per month and pendente lite spousal support in the amount of $4, 000 per month. On June 26, 2018, the trial court modified the pendente lite order to award the parties "shared" custody. The trial court modified the pendente lite order again on August 9, 2018, to award physical custody of the children to the husband, with supervised visitation to the wife; the trial court subsequently suspended the husband's pendente lite child-support obligation. The trial court awarded the wife unsupervised visitation beginning on October 3, 2018.

         After completion of the trial, the trial court entered a judgment divorcing the parties on November 2, 2018. The judgment awarded "primary" physical custody[1] of the children to the husband and awarded the wife regular unsupervised visitation. The trial court did not order the wife to pay child support because, it said: "This is a deviation from Rule 32 [, Ala R. Jud. Admin., ] due to the nature of the case and the fact that the income of one of the parties far exceeds the guideline capacity, and . . . the [wife] is currently on Social Security Disability and her prospects for employment are marginal."

         The trial court ordered that the marital home be sold and that any equity be divided equally between the parties. Specifically, the trial court's judgment provided:

"6. THAT the Court hereby reaffirms the previous order dated October 3, 2018 in regards [to] the marital homeplace ... wherein the Court appointed a Commissioner to sell same. The Commissioner has the authority to select the price and sell same. Any and all equity that may come out of said homeplace shall be divided equally 50/50, if there is no equity in the homeplace the [husband] must make up any and all differences . "

         The judgment also ordered the husband to "be responsible for the line of credit on the marital homeplace ... if said line of credit is not paid in full by the sale of same." The trial court ordered that the funds paid to the parties by their homeowners' insurance company as a settlement for damage to the marital home be used to pay fees for the court-appointed guardian ad litem for the children and that, if any funds were remaining after the payment of those fees, the remaining funds be divided equally between the parties.

         The trial court awarded the husband all the parties' interest in a business, which we shall refer to as "I.M.O.," and awarded the wife $25, 000 for her interest in I.M.O. as a property settlement. The judgment awarded the wife 10% of the husband's 30% interest in another business, which we shall refer to as "I.M.T." The trial court ordered that the wife "is bound by Buy/Sell Agreements and/or Board of Directors resolutions concerning [I.M.T.]" and that, in the event I.M.T. "does not allow for the transfer of ten percent (10%) of [the husband's] stock to [the wife]," the husband shall pay the wife $75, 000 for her interest. The husband owned an interest in a third company, "M.B.L.," which generated approximately $3, 000 per month in rental income to the husband. The trial court did not address that asset in the divorce judgment, so the husband's ownership in M.B.L. is unaffected by the divorce judgment. See Smith v. Smith, 892 So.2d 384, 389 (Ala. Civ. App. 2003).

         The trial court awarded the husband a Honda Pilot sport-utility vehicle, a Honda Odyssey van, and a boat; the trial court awarded the wife a GMC Yukon sport-utility vehicle. The judgment provided that each party was to pay any indebtedness associated with any vehicle that he or she was awarded. The judgment provided that the parties were to be equally responsible for their joint credit-card debt, and each party was ordered to pay the credit-card and other debts in his or her individual name. The trial court awarded the wife 40% of the husband's retirement account, which had a balance of approximately $362, 722, and all of her own retirement account, which had a balance of approximately $5, 000. The trial court also ordered the husband to pay to the wife rehabilitative alimony in the amount of $4, 000 per month for 120 months.

         On November 30, 2018, the wife filed a postjudgment motion attacking the custody award and the division of the property. On December 13, 2018, the trial court denied that motion. The wife, through new counsel, timely filed her notice of appeal on January 23, 2019.

         Discussion

         I. Custody

         On appeal, the wife first argues that the trial court erred in awarding the husband sole physical custody of the parties' children. She initially argues that the trial court erred in several evidentiary rulings relating to the custody determination. The wife also argues that, as the primary caregiver for the children during the parties' marriage, she was presumptively entitled to their custody.

         We reject the wife's contention that the trial court erroneously excluded the testimony of two counselors, A.H. and L.H. The trial court did not state that their testimony was excluded; rather, the trial court indicated that it had not given weight to their testimony, which was within the trial court's decision-making prerogative. See, e.g., Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000) . We also reject the wife's argument that the trial court erred in allowing her minister to testify to his observations of her. Rule 505, Ala. R. Evid., and § 12-21-166, Ala. Code 1975, prohibit the disclosure of confidential communications made to a clergyman. However, in this case, the trial court correctly limited the minister's testimony to his observations made outside any confidential communications. The wife also argues that the trial court erred by allowing a school administrator to answer a question regarding her opinion as to whether the wife had shown a healthy level of concern over the oldest child's test scores. The administrator testified on direct examination:

"Q. Was [the wife's] concern and displeasure about the ... scores, which were above average, was that a healthy level of concern ...

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