Clark v. Clark

23 So. 3d 1107, 2009 Ala. LEXIS 60, 2009 WL 794574
CourtSupreme Court of Alabama
DecidedMarch 27, 2009
Docket1071628
StatusPublished
Cited by6 cases

This text of 23 So. 3d 1107 (Clark v. Clark) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Clark, 23 So. 3d 1107, 2009 Ala. LEXIS 60, 2009 WL 794574 (Ala. 2009).

Opinion

COBB, Chief Justice.

On October 8, 2008, this Court granted the petition for a writ of certiorari filed by-David G. Clark to review the no-opinion affirmance by the Court of Civil Appeals of the trial court’s final order in this divorce case. Clark v. Clark (No. 2070264, June 27, 2008), — So.3d - (Ala.Civ.App.2008) (table). The trial court’s judgment of divorce awarded sole physical custody of the parties’ minor daughter to Michelle C. Clark, the mother; divided the marital property; and ordered David G. Clark, the father, to pay child support and periodic alimony. For the reasons stated herein, we reverse and remand the case for further proceedings consistent with this opinion.

A. Facts

I. The Parties

The father and the mother married on March 16, 1991. The daughter was born on September 9, 1998; the parties have no other children. On June 30, 2006, the father filed a complaint in the Baldwin Circuit Court seeking a divorce and custody of the daughter. On August 3, 2006, the mother filed an answer and a counterclaim for divorce and seeking custody of the daughter. The ease was tried on June 11-12 and August 9-11, 2007.1

Generally, the witnesses who testified at trial, including Dr. Alice Frederick, the parties’ marriage counselor, described the father as a “rational,” “stable,” and “responsible” man who was an appropriate role model for the daughter and who could provide appropriate parental guidance and discipline. Although Dr. Frederick was not asked her opinion as to whether it would be appropriate to place the daughter in the physical custody of the mother, Dr. Frederick testified as follows regarding the possibility of the daughter’s being placed in the primary physical custody of the father:

“[Father’s counsel]: Hypothetically speaking, if [the father] were to be awarded primary residential custody of [the daughter] do you have an opinion whether [she] would grow up in a nurturing environment that was safe, secure, stable, progressive ... ?
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“[Dr. Alice Frederick]: Yes. [The father] is a very stable and a very involved father and would do whatever he thought was in [the daughter]’s best interests.
“[Father’s counsel]: Would it in fact please you to see [the daughter] grow up under [the father’s primary residential care? ... I’m not asking you to choose one over the other. I was just asking you.
“[Dr. Alice Frederick]: Yes, I would like to see [the father] — I would like to see [the daughter] with [the father], [The daughter] reacts well with to [the father] and is very calm with [the father].”

The mother and her mother, the daughter’s maternal grandmother, testified, however, that the father was “cold and calculating” and that he would “push [the mother’s] buttons” — implying that he would deliberately cause the mother to lose her temper.

The father is a general manager for a hotel on the Gulf Coast. His work schedule is flexible, but at times requires him to work more than eight hours during a day and at night and on weekends. The mother is a partner in an antique business. [1110]*1110When the daughter is in her custody, the mother is able to take the daughter with her to work and to have her come to the antique shop after school.

The evidence before the trial court indicated that the mother was a person who had difficulty controlling her anger. Patricia Babb and the mother both described their relationship as “best friends.” Babb, who had known the mother for 19 years, testified that the mother was prone to outbursts and fits of rage and that those fits of rage had grown more frequent in the “last couple of years” before the trial. Babb stated that she had recommended to the mother several times over the years, and more frequently in the year leading up to the trial, that the mother seek therapy to learn how to manage her anger. According to Babb, the mother did not like this suggestion and would not agree she needed anger-management therapy. Babb stated that the mother was most prone to fits of anger toward her immediate family, including the father. Babb characterized the mother as a “good mother” and explained that the mother was involved in the daughter’s school activities. Babb testified that the mother disciplined the daughter at times by yelling at her. Babb expressed her concern that some of the mother’s yelling at the daughter was inappropriate. In addition, Babb testified that the mother had expressed resentment of the daughter and the attention the daughter received from the father; however, the mother denied that she had told Babb that she resented her daughter.

George Bates, who resides across the street from the parties’ marital home, described the mother as follows:

“[The mother] has a rage about her that she has an anger problem, but I have also seen a soft side of her, too. But the rage will just come right out on a dime. Um, I mean, I have always liked [the mother]. I felt sorry for her because of, I felt like she had a rage and anger problem but, um, I really — I just don’t, ah, you know, understand the anger and the rage. I, I- — because it comes out and she gets mad at the world. And I mean mad.”

The mother’s first cousin, Patricia Fa-gan, testified that she had “fairly often” seen the mother lose control of her emotions, both in private and in public. Fagan testified that on several occasions she attempted to discuss with the mother the concept of anger management and the mother’s temper but that those discussions only infuriated the mother more. Fagan testified that the mother had seemed to be a good mother up until two years before the trial, which was when she last had contact with the mother. Fagan did not know about the quality of the mother’s parenting skills since that time because the mother and Fagan had not spoken in that time. Fagan testified that the mother had “a lot of resentment since [the daughter] was born,” but she also testified that she had not seen the mother discipline the daughter inappropriately.

Chris Solberg, the wife of one of the executives at the hotel where the father worked, testified that she saw the mother lose her temper with the daughter in 2004 when some of the families of hotel employees evacuated to a motel in Prattville in anticipation of a hurricane hitting the Gulf Coast. Solberg described the incident as follows:

“[Solberg]: We all tried to go to breakfast together.... My daughter actually had gone to the restaurant with [the mother] and [the daughter] and I was coming behind them. And the hotel was full, the restaurant was full, people were — they had a buffet set up so people were coming and going. And I was putting my stuff, my things down to sit [1111]*1111down to eat breakfast. And I noticed [the daughter] was trying to get her mother’s attention. And, um, she kept saying, ‘Mommy, Mommy.’ She was trying to tell her something. And [the mother] was very uptight at that point, and said, grabbed [the daughter] and said, ‘Shut up.’ And grabbed her and shook her and said, ‘Just shut up. Shut up. What do you want?’ And [the daughter] just was, she was devastated. She started crying. My daughter was upset.
“[Father’s counsel]: How loud did she holler?
“[Solberg]: It was loud so the entire restaurant could hear.

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Bluebook (online)
23 So. 3d 1107, 2009 Ala. LEXIS 60, 2009 WL 794574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-clark-ala-2009.