Cooper v. Cooper

160 So. 3d 1232, 2014 WL 4055351, 2014 Ala. Civ. App. LEXIS 147
CourtCourt of Civil Appeals of Alabama
DecidedAugust 15, 2014
Docket2120533
StatusPublished
Cited by7 cases

This text of 160 So. 3d 1232 (Cooper v. Cooper) 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
Cooper v. Cooper, 160 So. 3d 1232, 2014 WL 4055351, 2014 Ala. Civ. App. LEXIS 147 (Ala. Ct. App. 2014).

Opinion

On Application for Rehearing

DONALDSON, Judge.

The no-opinion order of affirmance of May 9, 2014, is withdrawn, and the following is substituted therefor.

Mark Cooper (“the husband”) appeals from a judgment of the Lauderdale Circuit Court (“the trial court”) divorcing him from Diana Cooper (“the wife”). Among other things, the judgment addressed the division of the parties’ marital property, child custody, child support, and alimony. The husband contends that the judgment should be reversed because (1) he was prohibited from presenting testimony at trial from the minor children of the par[1234]*1234ties, (2) the wife should not have been awarded periodic alimony, and/or (3) the wife should not have been awarded physical custody of the children. We affirm the trial court’s judgment.

Facts

The following facts are pertinent to the issues raised on appeal. The wife and the husband married in 1988. Two children were born of the marriage: a son, C.H.C., born in 1999, and a daughter, M.A.C., born in 2000. The wife filed a complaint for a divorce from the husband in the trial court in September 2009, alleging as the ground an incompatibility of temperament between the parties. In her complaint, the wife sought, among other relief, an order awarding custody of the children to her, a division of the martial property, alimony, and child support.

In October 2009, the trial court entered a “Preliminary Order” addressing certain issues pendente lite. Regarding custody of the children, the order provided:

“The Court strongly suggests that children be allowed to continue to reside in the parties’ marital/family residence during the pendency of this action in the custody of the parent who traditionally has provided the child(ren)’s principal care and control prior to the initiation of this action. If the parties cannot agree on which parent will remain in the marital residence with the children, each party shall be entitled to reside in the marital residence until further order of the court.”

The parties lived together with the children in the marital residence until November 2010, when the wife moved with the children from the martial residence to an apartment. In December 2010, the wife filed a motion with the trial court seeking an order permitting her to move from the martial residence with the children. In the motion, the wife alleged that the living arrangement in the marital residence had become unreasonably tense and noted that the children would continue to attend the same school following her move. In support of her request, the wife alleged:

“[T]hat' the [husband] is disabled and suffers from various maladies, which include PTSD [post-traumatic stress disorder]. The [wife] has recently learned that the [husband] has been hearing ‘voices of old friends.’ The [husband] has also advised the wife that he has experienced an ‘out of body’ experience. As a result of these disorders, coupled with the medications which he takes, he is not physically or emotionally equipped to care for the children on a 24/7 basis. He is capable of assisting with the children and the [wife] intends for his relationship with the children to continue.”

The trial court entered an order granting the wife’s request to move with the children to the apartment and granting the husband specific “parenting time with the children.” The order appears to have been entered the same day the motion was filed and without prior notice to the husband. The husband responded with an objection to the order and a counterclaim seeking physical custody of the children. The children lived with the wife in a separate residence from November 2010 throughout the remainder of the proceedings.

The trial was conducted over five days between October 2011 and June 2012. Before the trial, the parties submitted a joint memorandum to the court purporting to resolve all issues concerning the division of their marital property and marital debt. However, an issue arose concerning a debt allegedly owed to the wife’s mother. The husband’s counsel stated at trial that the husband thought all issues had been resolved other than child custody, and the court responded that the memo[1235]*1235randum would be accepted “only as a reference point.” Later in the trial, the parties indicated to the trial court that the memorandum was mutually acceptable. The memorandum concerning the division of the parties’ marital property and marital debt was adopted in the final judgment, and neither party challenges the division of property or debt on appeal.

Testimony showed that the husband, who was in his mid-50s at the time of the trial, became employed by the United States Postal Service before the marriage. At the time of his employment, the husband was receiving compensation from the Department of Veterans Affairs due to a skin condition he had acquired during military service that left him partially disabled. Approximately 18 months after he married the wife, he was terminated from employment with the Postal Service because he had allegedly provided false information on his application for employment. He did not work again in any capacity. In 1995 or 1996, the husband was determined to be 100% disabled by the Department of Veterans Affairs due to unspecified medical reasons. The husband regularly took several prescription medications for attention-deficit disorder and anxiety as well as for his skin condition. The husband testified that he had seen 9 or 10 psychiatrists in an attempt to regulate his medications. The husband testified that he did not know the reason why he had been determined to be totally disabled, although he testified that the maximum disability percentage possible for his skin condition was 50%.

On his child-support documentation, the husband listed an average monthly income of $4,302, or $51,624 in annual income. On appeal, the husband argues that his monthly income was $4,497. Although various amounts were given over the course of the trial, it was undisputed that the husband paid the health-insurance premiums for the children in an approximate amount of $313 per month. The husband claimed that his monthly expenses exceeded his monthly income by six dollars. His trial testimony regarding the nature of those expenses was sparse and disjointed.

Testimony showed that the wife had been forced to become employed when the husband was terminated from his employment, that she had been employed throughout most of the marriage, and that the wife had had to return to work soon after the birth of each child. At the time of the trial, the wife was employed as an office manager for a physician. The child-support-guideline forms showed the wife’s average monthly income to be $2,562, or $30,744 annually. At trial, the wife testified that, based on a recent raise, she estimated that she earned $2,800 per month. The wife initially estimated that her monthly expenses exceeded her monthly income by $1,000, but in later testimony she stated that her expenses exceeded her income by “six to seven hundred” dollars. The wife requested $433 per month in alimony from the husband.

The primary dispute throughout the trial focused on physical custody of the children. The testimony was in conflict regarding the proper parent to have primary physical custody of the children.

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Cite This Page — Counsel Stack

Bluebook (online)
160 So. 3d 1232, 2014 WL 4055351, 2014 Ala. Civ. App. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-cooper-alacivapp-2014.