from Mobile Circuit Court (DR-18-900075)
("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.
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.
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.
completion of the trial, the trial court entered a judgment
divorcing the parties on November 2, 2018. The judgment
awarded "primary" physical custody 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."
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 . "
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.
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).
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
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.
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.
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 ...