Havron v. Havron

140 So. 3d 476, 2013 WL 4289318, 2013 Ala. Civ. App. LEXIS 185
CourtCourt of Civil Appeals of Alabama
DecidedAugust 16, 2013
Docket2120116
StatusPublished

This text of 140 So. 3d 476 (Havron v. Havron) 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
Havron v. Havron, 140 So. 3d 476, 2013 WL 4289318, 2013 Ala. Civ. App. LEXIS 185 (Ala. Ct. App. 2013).

Opinion

MOORE, Judge.

David Anson Havron (“the husband”) appeals from a judgment of the Bessemer Division of the Jefferson Circuit Court (“the trial court”), divorcing him from Donna Parker Havron (“the wife”). The husband challenges the trial court’s award of custody of the parties’ child to the wife, the amount of his child-support obligation, the division of the parties’ property and the marital debts, the award of alimony to the wife, and the denial of his motion to reopen the evidence.

Procedural History

On August 4, 2010, the wife filed a complaint for a divorce from the husband. On [478]*478September 9, 2010, the husband filed an answer and a counterclaim for a divorce. The case was tried on February 21, 2012. On April 5, 2012, before a divorce judgment was entered, the husband filed a motion to reopen the evidence and to allow the child to testify. He alleged, among other things, that the wife had decided to move to a high-crime area in the “South-side” area of Birmingham and that the child had indicated that he wanted to live with the husband. The trial court entered a judgment on June 5, 2012, divorcing the parties; awarding the parties joint legal custody of the child and the wife primary physical custody; awarding the husband specified visitation; ordering the husband to pay $408 monthly in child support; ordering the husband to pay the child’s private-school tuition for the 2011-2012 school year and thereafter if the husband chooses to send the child to a private school; ordering the husband to pay for medical insurance for the child; awarding the husband the marital home and ordering the husband to be responsible for the debt associated with the marital home; awarding the husband a beach condominium; dividing the parties’ motor vehicles and ordering the husband to pay the debt associated with all those vehicles; ordering the husband to pay the wife $136,000, representing one-half the equity in the marital home, the beach condominium, the retirement accounts, and the business assets, less the amount of the wife’s portion of the marital debt; ordering the husband to pay $700 per month in periodic alimony for 60 months; reserving the issue of periodic alimony after 60 months; dividing the parties’ personal property; and ordering the husband to pay the remainder of the marital debts.

On June 26, 2012, the husband filed a motion to alter, amend, or vacate the final judgment; that motion was denied by operation of law on September 24, 2012. See Rule 59.1, Ala. R. Civ. P. The husband filed his notice of appeal on November 1, 2012.

Discussion

I. Child Custody -

On appeal, the husband first argues that the trial court exceeded its discretion in awarding custody of the parties’ child to the wife.

“The standard by which this court reviews an initial award of custody following the presentation of ore tenus evidence is well settled:
“ ‘Alabama law gives neither parent priority in an initial custody determination. Ex parte Couch, 521 So.2d 987 (Ala.1988). The controlling consideration in such a case is the best interest of the child. Id. In any case in which the court makes findings of fact based on evidence presented ore tenus, an appellate court will presume that the trial court’s judgment based on those findings is correct, and it will reverse that judgment only if it is found to be plainly and palpably wrong. Ex parte Perkins, 646 So.2d 46 (Ala.1994). The presumption of correctness accorded the trial court’s judgment entered after the court has heard evidence presented ore tenus is especially strong in a child-custody case. Id.’
“Ex parte Byars, 794 So.2d 345, 347 (Ala.2001).
“ ‘ “This presumption [accorded to the trial court’s findings of fact based on ore tenus evidence] is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the [479]*479perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981). In regard to custody determinations, this Court has also stated: ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).”
‘Ex parte Farm, 810 So.2d 631, 632-33 (Ala.2001).
“ ‘In a divorce action between two fit parents, where there has been no prior custody determination and neither parent has voluntarily relinquished custody of the child, the “best interest” of the child is controlling; the parties stand on “equal footing” and no presumption inures to either parent. ““‘The trial court’s overriding consideration is the children’s best interest and welfare.” ’ ” Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998) (quoting Collier v. Collier, 698 So.2d 150, 151 (Ala.Civ.App.1997), quoting in turn Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)).
“ ‘In considering the best interests and welfare of the child, the court must consider the individual facts of each case:
“ ‘ “The sex and age of the children are indeed very important considerations; however, the court must go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.”
‘Ex parte Devine, 398 So.2d 686, 697 (Ala.1981).’
“Fell v. Fell, 869 So.2d 486, 494-95 (Ala.Civ.App.2003).”

Long v. Long, 109 So.3d 633, 645 (Ala.Civ.App.2012).

In the present case, the wife testified that she had been the primary caretaker of the child and that the husband had stepped up to play an active role in child-rearing only since the divorce action had been filed. The husband, on the other hand, testified that he had always been an active parent. The husband admitted that the wife is a good mother. The husband expressed concerns, however, about the wife’s lifestyle, specifically, her drinking, smoking, partying, and socializing with lesbian women.

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Related

Flores v. Flores
978 So. 2d 791 (Court of Civil Appeals of Alabama, 2007)
Collier v. Collier
698 So. 2d 150 (Court of Civil Appeals of Alabama, 1997)
Fell v. Fell
869 So. 2d 486 (Court of Civil Appeals of Alabama, 2003)
Ex Parte Fann
810 So. 2d 631 (Supreme Court of Alabama, 2001)
Williams v. Williams
402 So. 2d 1029 (Court of Civil Appeals of Alabama, 1981)
Ex Parte Bryowsky
676 So. 2d 1322 (Supreme Court of Alabama, 1996)
Ex Parte Devine
398 So. 2d 686 (Supreme Court of Alabama, 1981)
Ex Parte Couch
521 So. 2d 987 (Supreme Court of Alabama, 1988)
Ex Parte Perkins
646 So. 2d 46 (Supreme Court of Alabama, 1994)
Graham v. Graham
640 So. 2d 963 (Court of Civil Appeals of Alabama, 1994)
Nichols v. Nichols
824 So. 2d 797 (Court of Civil Appeals of Alabama, 2001)
Smith v. Smith
727 So. 2d 113 (Court of Civil Appeals of Alabama, 1998)
Sutton v. Sutton
314 So. 2d 707 (Court of Civil Appeals of Alabama, 1975)
Ex Parte Byars
794 So. 2d 345 (Supreme Court of Alabama, 2001)
Long v. Long
109 So. 3d 633 (Court of Civil Appeals of Alabama, 2012)
J.D.A. v. A.B.A.
142 So. 3d 603 (Court of Civil Appeals of Alabama, 2013)

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Bluebook (online)
140 So. 3d 476, 2013 WL 4289318, 2013 Ala. Civ. App. LEXIS 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/havron-v-havron-alacivapp-2013.