Hyche v. Hyche

226 So. 3d 673, 2016 Ala. Civ. App. LEXIS 290, 2016 WL 7030620
CourtCourt of Civil Appeals of Alabama
DecidedDecember 2, 2016
Docket2150774
StatusPublished
Cited by2 cases

This text of 226 So. 3d 673 (Hyche v. Hyche) 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
Hyche v. Hyche, 226 So. 3d 673, 2016 Ala. Civ. App. LEXIS 290, 2016 WL 7030620 (Ala. Ct. App. 2016).

Opinion

THOMAS, Judge.

Lauren Alyse Hyche (“the mother”) appeals a judgment of the Walker Circuit Court (“the trial court”) in which the trial court, among other things, divorced her from Shanon Cruz Hyche (“the father”), [674]*674awarded the parties joint legal and physical custody of their son (“the child”), and ordered the father to pay child support. We affirm the trial court’s judgment in part, reverse it in part, and remand this cause to the trial court.

Background

The parties were married on June 2, 2012, and the child was born on August 20, 2013. The mother filed a divorce complaint on October 23, 2015, requesting, among other things, that she be awarded “care, custody!,] and control” of the child. The father answered the mother’s complaint and counterclaimed, requesting, among other things, that the parties be awarded joint legal and physical custody of the child. In December 2015, the trial court entered a pendente lite order that set out, in relevant part, the father’s scheduled “periods of physical custody” and required the father to pay the mother $400 per month as child support.

A trial was held on May 11, 2016, and the trial court entered a judgment the next day divorcing the parties and, among other things, awarding them joint legal and physical custody of the child and requiring the father to pay the mother $458 per month as child support. The mother filed a timely notice of appeal. On appeal, the mother argues that the trial court’s judgment should be reversed because its award of joint custody is improper and because its calculation of the father’s child-support obligation is incorrect.

Analysis

The mother first argues that the trial court’s judgment should be reversed because its award of joint custody “was not supported by the evidence, was not in the child’s best interest, was plainly and palpably, wrong, and exceeded the trial court’s discretion.”

“It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody.”

§ 30-3-150, Ala. Code 1975.

‘“[0]ur review of custody determinations based on ore tenus evidence is quite limited; the trial court’s custody judgment is presumed correct and should be reversed only if the judgment is plainly and palpably wrong.’ Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ. App. 2003).
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“In Graham v. Graham, 640 So.2d 963, 964 (Ala. Civ. App. 1994), this court wrote:
“ ‘In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. Hall v. Hall, 571 So.2d 1176 (Ala. Civ. App. 1990). The trial court’s overriding consideration is the children’s best interests and welfare. Santmier v. Santmier, 494 So.2d 95 (Ala. Civ. App. 1986). The factors that enter into the court’s custody determination include the child’s age and sex and each parent’s ability to provide for the child’s educational, material, moral, and social needs. Tims v. Tims, 519 So.2d 558 (Ala. Civ. App. 1987). Likewise, it is proper for the court to consider the “characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and [675]*675each parent.” Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981).’ ”

Harris v. Harris, 59 So.3d 731, 734-35 (Ala. Civ. App. 2010).

In addition, § 30-3-152, Ala. Code 1975, provides, in pertinent part:

“(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:
“(1) The agreement or lack of agreement of the parents on joint custody.
“(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
“(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent,
“(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
“(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.
“(b) The court may order a form of joint custody without the consent of both parents, when it is in the best interest of the child.”

In its judgment, the trial court stated the following, in pertinent part:

“In reaching a decision regarding the custody of the [child], the parties stood on an equal footing such that neither parent enjoyed a favorable presumption. The paramount and controlling concern of the Court was the best interest of the child. The Court weighed the age and sex of the parties’ [child]; the [child’s] emotional, social, moral, material, and educational needs; and the characteristics of those seeking custody, including age, character, stability, mental and physical health, and their respective home environments. [The parties] will have joint legal and physical custody of [the child].”

In light of its findings, the trial court’s judgment provided:

“[The parties] will have joint legal custody of [the child]. Both parents will discuss with each other and agree on major decisions concerning the child, including, but not limited to academic, religious, civic, cultural, athletic, and other activities, and in medical and dental care. If the parents are unable to agree on a decision, [the mother] will have the primary authority and responsibility for the final decision.
“[The parties] will have joint physical custody of [the child] in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.”

The mother testified that, at the time of the trial, she and the child were living at her mother and stepfather’s house in Cor-dova. She stated that, before she filed her divorce complaint, she had been the child’s primary caregiver and that the father had not done “a whole lot” for the child. She said that, pursuant to the trial court’s pen-dente lite order, the child had recently been spending time with each party separately and that she felt that doing so had been “really hard on him,” specifically stating: “He acts out more, his routine is thrown off, he don’t go to bed on time like he did. He’s ill.” She contrasted the child’s behavior during the divorce litigation with his behavior during the parties’ marriage, [676]*676during which time the child had reportedly-done “[v]ery well.”

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Related

Rigby v. Rigby
268 So. 3d 76 (Court of Civil Appeals of Alabama, 2018)

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Bluebook (online)
226 So. 3d 673, 2016 Ala. Civ. App. LEXIS 290, 2016 WL 7030620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hyche-v-hyche-alacivapp-2016.