Brf v. Avf

70 So. 3d 412, 2011 Ala. Civ. App. LEXIS 60, 2011 WL 755259
Procedural entryThis page is a short order in Brf v. Avf. Read the opinion of the Court — 70 So. 3d 412
Court of Civil Appeals of Alabama·Decided March 4, 2011·No. 2090872·Published

Opinion

70 So.3d 412 (2011)

B.R.F.
v.
A.V.F.

No. 2090872.

Court of Civil Appeals of Alabama.

March 4, 2011.
Rehearing Denied April 15, 2011.

*413 John D. McCord, of McCord & Martin, Gadsden, for appellant.

Jack W. Torbert, Jr., of Torbert & Torbert, P.A., Gadsden, for appellee.

BRYAN, Judge.

B.R.F. ("the father") appeals from a judgment entered by the Etowah Circuit Court ("the trial court") that divorced him from A.V.F. ("the mother") insofar as that judgment awarded the mother sole physical custody of the parties' child, failed to require the mother to refinance the mortgage on the marital residence, and required the father to pay a portion of the mother's student-loan debt.

Background and Procedural History

The parties were married in August 2005, and one child, a girl, was born of the marriage in September 2006. The father filed for a divorce on June 24, 2009, and the mother subsequently filed a counterclaim for a divorce. The trial court entered a pendente lite order that awarded the mother possession of the marital residence, awarded the parties joint legal custody of the child, awarded the mother primary physical custody of the child, and awarded the father visitation with the child. The father was also ordered to pay the mother pendente lite alimony and child support.

After conducting an ore tenus hearing, the trial court entered a judgment divorcing the parties on the ground of incompatibility of temperament. Pursuant to that judgment, the parties were awarded joint legal custody of the child, the mother was awarded primary physical custody of the child, the father was awarded specific visitation with the child, and the father was ordered to pay the mother child support.[1] The judgment awarded the mother all title to and interest in the marital residence, required the mother to pay the remaining *414 debt on the marital residence, awarded each party all the personal property in his or her possession, awarded each party the vehicle in his or her possession, ordered each party to be responsible for the debt on the vehicle in his or her possession, and ordered the father to pay the mother $7,000, which represented a portion of the mother's total student-loan debt.

The father filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., in which he challenged, among other things, the award of primary physical custody to the mother, his child-support obligation, and the requirement that he pay a portion of the mother's student-loan debt. The father also argued that the judgment "should provide for a certain time in which [the mother] should be allowed to have [the father's] name removed from the [mortgage on the marital residence]. . . ." The trial court subsequently entered an order granting the father's postjudgment motion by modifying the father's child-support obligation to $400 a month and by requiring the mother to "diligently seek refinancing to allow [the father]'s name to be removed from the mortgage. . . ." at the time that she "finishes school and obtains full-time employment." The father timely appealed.

Issues

On appeal, the father argues that the trial court erred by awarding the mother sole physical custody of the child, by failing to order the mother to refinance the mortgage on the marital residence at a "time certain," and by requiring the father to repay a portion of the mother's student-loan debt.

Facts

Before the start of the final hearing on March 29, 2010, the parties stated their agreement on the record that the mother would be awarded the marital residence, that she would be required to pay all the indebtedness on the marital residence, that each party would be awarded the personal property in his or her possession, and that each party would be awarded the vehicle in his or her possession. The mother testified that the marital residence was encumbered by a mortgage and that the balance of the mortgage at the time of the final hearing was approximately $80,000.

At the time of the final hearing, the mother was 27 years old, and she was a student at Jacksonville State University seeking a degree in art and art history. She planned to graduate from Jacksonville State University in the fall of 2010, and then she planned to go to the University of Alabama at Birmingham for one year to get her teaching certificate. The mother also worked part-time, approximately 14 to 20 hours a week, at an establishment called "The 215," earning $8.50 an hour.

The mother stated that the father had been unemployed at certain points during the parties' marriage and that the parties had been required to use her student-loan income to pay household utility bills, to pay for day-care expenses for the child, and to pay for repairs to the marital residence. The mother testified that her student-loan debt totaled approximately $30,000, and she asked the trial court to require the father to repay $10,000 as the portion of her student-loan debt that was used for the benefit of the father during the marriage.

The father, who was 29 years old at the time of the hearing, testified that he knew that some of the mother's student-loan income had been used to pay for repairs on the marital residence and that the parties had occasionally used her student-loan income to pay the utility bills associated with the marital residence. The father estimated that approximately $1,500 of the utility bills.

*415 According to the father and several witnesses testifying on his behalf, the father had been the child's primary caregiver, had cooked meals for the family, had potty-trained the child, had been the child's primary disciplinarian, and had been responsible for cleaning the marital residence. The mother had been a college student off and on throughout the parties' marriage, and, according to the father, the mother was always preoccupied with her school work when she was at home. However, the mother, along with several other witnesses, testified that the mother had been the child's primary caregiver and had managed the parties' household.

The father stated that, during the pendency of the divorce proceeding, the mother had offered him visitation with the child in addition to his scheduled pendente lite visitation because the child had expressed her desire to see the father. According to the father, between September 2009 and March 2010, the mother had offered the father between two and eight additional visitation days a month. The father testified that the mother had not allowed him to have additional visitation time with the child after he threatened to stop paying child support because he had custody of the child so often. The father admitted that he had denied the mother's request for additional visitation time with the child during the 2009 Christmas holidays. The mother testified that her mother and father had divorced when she was a child, that she had been raised primarily by her father, and that she knew what it was like to see one parent only four days a month, so, she said, she offered the father more opportunities to see the child for the child's sake.

At the time of trial, the father was living in a two-bedroom apartment, and he stated that there was ample room for the child to live with him. The father worked as a corrections officer, and his work schedule was on a 2-week pattern in which he worked a 12-hour shift, from 6:00 p.m. to 6:00 a.m., on Sunday, Wednesday, and Thursday the first week and in which he worked the same 12-hour shift on Monday, Tuesday, Friday, and Sat

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Brf v. Avf, 70 So. 3d 412, 2011 Ala. Civ. App. LEXIS 60, 2011 WL 755259 (Ala. Ct. App. 2011).

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B.R.F. v. A.V.F.
70 So. 3d 412 (Court of Civil Appeals of Alabama, 2011)