Burkett v. Burkett

87 So. 3d 544, 2011 Ala. Civ. App. LEXIS 218, 2011 WL 2508195
CourtCourt of Civil Appeals of Alabama
DecidedJune 24, 2011
Docket2090587
StatusPublished

This text of 87 So. 3d 544 (Burkett v. Burkett) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burkett v. Burkett, 87 So. 3d 544, 2011 Ala. Civ. App. LEXIS 218, 2011 WL 2508195 (Ala. Ct. App. 2011).

Opinions

PITTMAN, Judge.

Robert Ford Burkett (“the husband”) appeals from a judgment divorcing him from Anne Winkler Burkett (“the wife”) that, among other things, divided the parties’ marital property and assets, awarded primary physical custody of the parties’ children to the wife, and ordered the husband to pay child support and to maintain a $500,000 life-insurance policy for the benefit of the children.

The parties were married in 1991; two children were born during the marriage: a daughter, who was born in 1994 and a son, who was born in 1998. The husband had been self-employed as an insurance agent and an investment banker throughout the marriage; the evidence established that his gross monthly income had been $8,105.50 in 2007 and $3,666.17 in 2008. The wife had been employed by the Madison County Commission for most of the marriage; at the time of trial, the wife was serving as the county’s economic-development director and had earned a monthly gross income of $5,235.43 in 2007 and $5,470.54 in 2008.

In March 2007, the husband filed a complaint seeking, among other things, a divorce from the wife, an award of joint legal and physical custody of the children, an equitable division of the marital assets, and an allocation of the marital debts. The wife filed an answer; she also filed a counterclaim in which she sought primary physical custody of the children, an award of child support, an equitable division of the marital assets and allocation of the marital debts, and an award of attorney fees. The wife also requested that the trial court instruct the parties to split the household costs equally during the pen-dency of the divorce action.

A pendente lite order was entered in June 2007 that instructed the parties to maintain the status quo during the pen-dency of the litigation. In January 2008, the wife requested that the trial court appoint a special master to assess the value of the husband’s insurance agency and investment business. Following a hearing on the matter, in October 2008, the trial court appointed a special master who was instructed to determine both the “fair market value” and the “fair value” of the husband’s businesses for consideration at the divorce trial. Subsequently, the wife filed a motion seeking a contempt judgment against the husband for his alleged failure to maintain the status quo regarding household expenses pendente lite. Following a hearing in March 2009, the trial court modified the pendente lite order by ordering the parties to share the monthly house[546]*546hold expenses on a pro rata basis. The order instructed the husband to deposit $1,437.08 monthly into a joint checking account, directed the wife to deposit $3,353.17 monthly into the same account, mandated that all monthly bills be paid from that account, and required that accurate records of that account be maintained.

The divorce trial was conducted between September 29 and October 1, 2009. During that ore tenus proceeding, the parties, the children’s paternal grandmother, and the parties’ teenaged daughter testified. In addition, John McKinney, a vocational evaluator, and Dr. Joan Kerr, a child psychologist, testified.

During the trial, the husband testified that he had first experienced concerns about the parties’ marriage during the daughter’s infancy. He stated that the wife would typically fly into hysterical rages, hitting him and throwing objects; he stated that, although those rages had occurred only about once each year for the first part of the marriage, the wife’s temper had become progressively worse until, by 2005, he reportedly could not tolerate her tantrums any longer and began planning to seek a divorce. The husband stated that one of his ongoing problems with the wife was the fact that he had been reared as a Methodist and that she was a member of the Christian Science Church, \yhich he considered to be a “strange” faith.

Another factor in the husband’s decision to seek a divorce was the wife’s allegedly deteriorating relationship with the daughter. The husband asserted that the wife had been abusive toward him and the daughter throughout the marriage; however, he admitted that the wife had never injured him physically. The husband contended that the daughter’s school problems had been caused by her deteriorating relationship with the wife. He stated that he could not tolerate the arguments between the wife and the daughter over schoolwork and curfews, and, based upon his belief that he had a better relationship with the daughter, the husband orally changed his custody request to seek an award of primary physical custody of the children.

The wife stated that she had been the primary caregiver for the children throughout the marriage. She also testified that she had been worried about the daughter for several years before finally taking the daughter to a child psychologist recommended by the husband, Dr. Kerr. Initially, the wife thought the daughter might have attention deficit disorder (“ADD”), but she learned that the daughter suffered from oppositional defiant disorder (“ODD”). That problem had caused the daughter to defy her teachers and to fail subjects in school because she would not complete her homework. The wife stated that, although she and the daughter had engaged in loud confrontations in the past, the daughter was presently learning to do what was expected in school and at home after receiving Dr. Kerr’s help. The wife reasserted at trial her request that she be awarded primary physical custody of the children.

The wife testified that she had tried to encourage the husband to find more lucrative employment, but she stated that he had resisted. She noted that, during discovery for the divorce, she had learned that the husband had paid his staff more than he paid himself from his business, and she stated that his unwillingness to support the family had disgusted her. She accused the husband of intentionally earning less than he could in order to force her to pay most, if not all, of the household expenses. The wife testified, and the husband admitted during cross-examination, that the husband had failed to comply with [547]*547the trial court’s pendente lite order to pay one-third of the family’s living expenses before trial. The wife’s documentation that the husband owed $23,624.58 as reimbursement to her for not paying those household expenses was admitted into evidence without objection.

The children’s paternal grandmother testified that, during the marriage, she had regularly kept the children after school and had often provided supper for the whole family two nights a week. She stated that, although the daughter disobeyed the wife, the paternal grandmother had been better able to control the daughter’s behavior. In addition, the paternal grandmother stated that she believed that the daughter’s personality issues stemmed from her tempestuous relationship with the wife that dated back to the daughter’s early childhood. She said that she remembered several occasions when the wife had grabbed the daughter’s arm, digging her fingernails into the arm to get the daughter’s attention or to discipline the daughter. The paternal grandmother opined that the husband had exerted a more calming influence on the daughter and suggested that, because she was a retired schoolteacher, she could help the husband work through the daughter’s academic problems if he received primary physical custody of the children.

The daughter’s testimony was surprisingly mild in light of the husband’s contentions that the wife had physically and emotionally abused her.

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Bluebook (online)
87 So. 3d 544, 2011 Ala. Civ. App. LEXIS 218, 2011 WL 2508195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkett-v-burkett-alacivapp-2011.