M.S.H. v. C.A.H.

829 So. 2d 164
CourtCourt of Civil Appeals of Alabama
DecidedMarch 8, 2002
Docket2001188
StatusPublished
Cited by18 cases

This text of 829 So. 2d 164 (M.S.H. v. C.A.H.) 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
M.S.H. v. C.A.H., 829 So. 2d 164 (Ala. Ct. App. 2002).

Opinion

THOMPSON, Judge.

M.S.H. (“the father”) and C.A.H. (“the mother”) were divorced by an April 3, 2000, order of the trial court. The parties had entered into a settlement agreement on February 29, 2000. The trial court’s April 3, 2000, divorce judgment incorporated the terms of that agreement. The divorce judgment provided, in pertinent part, that the parties share joint custody of their two minor children; that the father pay child support in the amount of $815 per month; that the father maintain health insurance for the children; and that the father pay the mother a $10,000 lump-sum property settlement on March 1, 2001.

On February 7, 2001, the father filed a petition to modify custody of the parties’ children. The mother filed an answer on March 8, 2001. On March 9, 2001, the mother filed a counter-petition seeking sole custody of the parties’ children, subject to reasonable visitation for the father, [166]*166and seeking an award of child support under the Rule 32, Ala. R. Jud. Admin., Child Support Guidelines. On March 22, 2001, the mother filed a motion seeking to have the father held in contempt for failing to pay the mother the $10,000 lump-sum property settlement on March 1, 2001. On April 4, 2001, the father filed a motion for pendente lite relief, seeking to reduce his monthly child-support obligation by the amount he paid monthly for the children’s day care and seeking to reduce the lump-sum property settlement he owed the mother by the amount he had previously expended for the children’s day care. On April 6, 2001, the trial court entered an order granting the father’s requested pen-dente lite relief.

The trial court conducted a hearing and received ore tenus evidence on May 22, 2001. On May 30, 2001, the trial court entered a judgment in which it modified its April 3, 2000, divorce judgment. The May 30, 2001, judgment, among other things, set aside the April 6, 2001, order; awarded the mother primary custody of the parties’ children and awarded the father reasonable visitation; ordered the father to pay the lump-sum property settlement awarded to the mother in the original divorce judgment, but reduced the lump-sum property settlement by $150 for each month the father had paid the children’s day-care costs. The court also ordered the father to pay all of the children’s future day-care costs. The father filed two timely post-judgment motions. The trial court denied both motions. The father appealed.

Where a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This “presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). In addition, when the trial court’s judgment does not make specific findings of fact, this court must assume that the trial court made those findings of fact necessary to support its judgment. Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996).

The parties were married on July 27, 1996. The father filed for a divorce on February 29, 2000. The father’s attorney drafted the settlement agreement. The divorce was not contested by either party, and the mother was not represented by counsel.

At the time of the parties’ divorce, the mother was 27 years old and the father was 42 years old. The divorce judgment ordered the parties to share joint custody of their two children, but it did not establish a visitation schedule. Both parties asserted that they had difficulties agreeing to a consistent visitation schedule for the children, especially regarding holiday visitation. The father testified that he understood the divorce judgment to provide the parents equal time with the children.

The father is self-employed; he manages and owns a majority interest in a flooring business. The mother works full-time as a technician for a medical clinic. The record contains CS-41 and CS^12 forms prepared by the mother, the father’s 2000 W-2 form, and the father’s earning statement for the months January 2001 through April 2001.

The children attend a private day-care program. The combined monthly tuition for both children is $503.50. The father testified that the mother failed to make [167]*167some of the tuition payments to the school. The father asserts that, pursuant to the divorce judgment, the mother was responsible for the children’s day-care expenses. However, our review of the divorce judgment indicates that it does not mention which party was to bear the responsibility for work-related child-care costs. The record indicates that both parties have made payments toward the children’s day-care tuition since the parties’ divorce. The mother testified that after March 2001, she failed to make some of the children’s tuition payments because the father had not paid the $10,000 lump-sum property settlement pursuant to the terms of the divorce judgment.

The father asserts that, at some time between the parties’ divorce and the hearing in this matter, he had a telephone conversation with the mother, and that during their conversation, the mother threatened to harm herself; the mother denies that assertion. The mother testified that during one of the parties’ telephone conversations following the divorce, the mother became upset and hung up on the father. The father testified that he was afraid the mother would harm herself so he sent his brother to the mother’s home to check on her. The father testified that he informed the mother that she should not cry or become upset in front of the children because it could upset them.

The father maintains that the mother was molested by her stepfather as a child, but that the mother had allowed the children to associate with her stepfather since the parties’ divorce. However, the father testified that he had never actually seen the children in the presence of their step-grandfather. The mother testified that in December 2000, she and the children attended the Christmas Eve service held at their church and that her mother and stepfather were present. The mother’s mother and stepfather do not attend the same church as the mother; the mother testified that she did not know that her stepfather would be present at the service. The mother testified that when the congregation stood to sing a hymn during the service, the youngest child wandered down the pew and stood near the stepgrandfa-ther, but the mother immediately retrieved the child. The mother testified that on one other occasion the stepgrandfather was present when she and the oldest child met the maternal grandmother for lunch. The mother testified that she was not aware that the stepgrandfather would be present. The mother testified that these are the only two instances in which the children have been in the stepgrandfa-ther’s presence since the parties’ divorce. We note that, pursuant to the trial court’s May 30, 2001, judgment, the mother is enjoined from allowing the children to visit with the stepgrandfather.

The mother testified that she takes the children to church services each week and that the children are active in church activities. The minister from the church of which the mother is a member and two church members testified on the mother’s behalf; one of the mother’s friends also testified.

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Bluebook (online)
829 So. 2d 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/msh-v-cah-alacivapp-2002.