Summers v. Summers

58 So. 3d 184, 2010 Ala. Civ. App. LEXIS 115, 2010 WL 1740423
CourtCourt of Civil Appeals of Alabama
DecidedApril 30, 2010
Docket2080457
StatusPublished
Cited by12 cases

This text of 58 So. 3d 184 (Summers v. Summers) 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
Summers v. Summers, 58 So. 3d 184, 2010 Ala. Civ. App. LEXIS 115, 2010 WL 1740423 (Ala. Ct. App. 2010).

Opinion

PITTMAN, Judge.

Joel Lynn Summers (“the father”) appeals from a judgment of the Lauderdale Circuit Court that divorced him from Cayce Lane Summers (“the mother”), ordered him to pay $760 per month as child support, awarded the mother primary physical custody of the child born of the marriage, fashioned a division of the couple’s marital assets, and declined to sanction the mother in response to the father’s allegations that she suborned perjury during trial. We affirm in part, reverse in part, and remand with instructions.

The record shows that the parties married in 2000 after having lived together for approximately two years. In 2007, the father filed simultaneously a petition for protection from abuse and a complaint in which he sought a divorce, temporary custody of the parties’ minor child pending a hearing, and an equitable division of the marital estate. After several procedural delays, the case was tried in 2008 on one day in June, two days in August, and one day in November. That trial featured the testimony of the mother, the father, relatives of both parties, and a psychiatrist who had treated the mother. The trial court entered its judgment in December 2008 and denied the father’s postjudgment motion in January 2009, after which the father timely appealed to this court.

The father asserts four primary contentions on appeal, the first being that the trial court erred in failing to sanction the mother for her alleged subornation of perjured testimony. At the June hearing, a witness called by the mother testified that, within the first few years after the parties were married, the father had given the witness cocaine in exchange for sexual favors. In rebuttal, the father brought to the August hearings his own witness, a private detective he had hired to gather information about the mother’s witness. That detective produced at trial a tape recording on which the mother’s witness could be heard admitting to having testified falsely in this case in exchange for money at the mother’s request. The father also adduced an unverified, handwritten document purporting to be the witness’s formal confession of his perjury; the document described an “older, dark-haired” woman as the one who had paid the witness. However, the father made no attempt to adduce evidence showing that the mother (who, incidentally, has blonde hair) knew that the testimony was false when given, much less demonstrating that the mother suborned the allegedly perjured testimony. Given the evidence before it, the trial court had no logical basis for deciding whether the witness’s testimony, the witness’s audiotaped claim, the unverified “confession,” or none of them, represented the truth.

As the father notes, perjury and the subornation of perjury are crimes in Alabama, see Ala. Code 1975, §§ 13A-2-23 [187]*187and 13A-10-101 et seq. However, the determination whether a party is due to be sanctioned is within the discretion of the trial court, Shonkwiler v. Kriska, 780 So.2d 703, 706 (Ala.Civ.App.2000), and a party can be punished for criminal contempt of court in the manner sought by the father “only upon an adjudication based upon proof of guilt beyond a reasonable doubt.” Id. Given the equivocal evidence presented to the trial court, we cannot conclude that the trial court acted outside its discretion by failing to sanction the mother for subornation of perjury in its final judgment.

The father’s second contention is that the trial court erred in awarding custody of the parties’ minor child to the mother in view of the “best interests” test, the mother’s lengthy and freely admitted history of substance abuse and mental-health problems, the mother’s alleged procurement of perjured testimony (which we have already discussed), and the issuance of a protection order entered against the mother earlier in the proceedings. The mother admitted that she had taken a variety of prescribed painkillers and antidepressants as well as illegal drugs beginning in her teen years; that drug abuse persisted through two miscarried pregnancies during the parties’ marriage up to the time she became pregnant with the child whose custody is at issue in this appeal. Aside from those admissions, pertinent evidence was provided primarily in the form of trial testimony in which the mother and the father flatly contradicted each other’s accounts in large measure.

Our standard of review as to the trial court’s custody determination is deferential:

“ ‘A trial court’s custody determination following the presentation of ore tenus evidence is presumed correct, and that judgment will not be set aside on appeal absent a finding that the trial court abused its discretion or that its determination is so unsupported by the evidence as to be plainly and palpably wrong.’ Steed v. Steed, 877 So.2d 602, 604 (Ala.Civ.App.2003). ‘This court may not substitute its judgment for that of the trial court.’ Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000). ‘The controlling consideration in child-custody matters is always the best interests of the child.’ Patrick v. Williams, 952 So.2d 1131, 1140 (Ala.Civ.App.2006).”

McCartney v. McCartney, 11 So.3d 213, 220-21 (Ala.Civ.App.2007). Moreover, when a trial court hears conflicting testimony, we must review the evidence in a light that favors the prevailing party. McClellan v. McClellan, 959 So.2d 658, 661 (Ala.Civ.App.2006).

The factors the trial courts must consider in determining the best interests of a child are many; they include, but are not limited to, the child’s needs; the home environments offered by the parties; the characteristics of the parties, including their character and mental health; the relationships between each parent and the child; and “any other relevant matter the evidence may disclose.” Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981). Finally, when the trial court does not provide specific findings of fact, as in this case, we will assume that the trial court made those findings that would be necessary to support its judgment so long as such findings would not be clearly erroneous. See, e.g., Kelly v. Kelly, 981 So.2d 423, 426 (Ala.Civ.App.2007).

Aside from the mother’s admitted past problems with drugs and depression, nearly every factor brought into evidence that the trial court might have weighed in making its custody determination was presented in the form of disputed testimony. The [188]*188father testified, and the mother admitted, to her having had flares of temper in years past that might have been caused by her prescription drugs. The mother testified, however, that she had improved, and she added that the father had been subject to violent outbursts as well. Each party accused the other of domestic violence, drug or alcohol problems, and other incidents of bad conduct.

Both parents, and family members called as witnesses by both parents, testified that the parents were loving and attentive toward the child. The mother testified that she had essentially conquered her problems with prescription drugs, and at the time of trial she was attending college in order to improve her earning capacity. The father was earning over $60,000 per year, but he admitted that he often worked 6 10-hour days per week, limiting the time he could spend with the child.

With respect to the protection order entered against the mother early in these proceedings, the circumstances accompanying the issuing of that order would have been another factor for the trial court to consider in its custody determination.

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Bluebook (online)
58 So. 3d 184, 2010 Ala. Civ. App. LEXIS 115, 2010 WL 1740423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summers-v-summers-alacivapp-2010.