Giardina v. Giardina

987 So.2d 606

Nancy H. GIARDINA v. Henry S. GIARDINA.

2060185.

Court of Civil Appeals of Alabama.

January 18, 2008.

Thomas H. Nolan, Jr., of Wright, Green, P.C., Mobile, for appellant.

James G. Curenton, Jr., Fairhope, for appellee.

On Application for Rehearing

THOMAS, Judge.

The opinion issued by this court on October 5, 2007, is withdrawn, and the following opinion is substituted therefor. Nancy H. Giardina ("the mother") and Henry S. Giardina ("the father") were divorced by the Baldwin Circuit Court on August 4, 2006. The divorce judgment, among other things, awarded sole physical custody of the parties' two sons, who were 11 and 7 years of age at the time of trial, to the father; granted the mother standard visitation rights and ordered her to pay $200 per month in child support; ordered the father to pay the mother rehabilitative alimony in the amount of $1,500 per month for 3 years; and required that, if the mother successfully completed an educational or vocational course of study, the father reimburse her up to $5,000 within 120 days of her receiving a certificate or diploma.

The judgment granted the mother possession of the marital residence for one month following the date of the judgment and awarded the father exclusive possession of the residence thereafter. The judgment further provided that the parties share the cost of having the residence appraised and that the father pay the mother half the equity in the residence. The judgment made each party responsible for the debts he or she had incurred since the date of the parties' separation, awarded each party his or her own personal property, and required the mother to "execute any documents necessary to convey any claim to any property owned by the [father], including any business interest."

The judgment further provides:

"The [father] is awarded what the court has marked as Exhibit B, a list of his personal property and is attached to and incorporated by reference herein. The [mother] shall leave all of the property in the house when she surrenders possession, after having a reasonable time to find other lodging. The [mother] is awarded all of her property including the restored Cutlass automobile."

The mother appeals, arguing that the trial court erred by awarding sole physical custody of the parties' two sons to the father, by awarding her inadequate rehabilitative alimony, by failing to reserve jurisdiction to award her permanent periodic alimony, and by making an inequitable division of the parties' marital assets and liabilities. She also asserts that the admission of certain evidence and an omission by her attorney entitle her to a new trial.

Factual and Procedural Background

At the time of trial, the father was 59 years old and the mother was 40 years old. This was the father's second and the mother's first marriage. The father had completed three years of college but had dropped out in his senior year and joined the Marines. In 1975, when he was 28 years old, the father pleaded guilty and was convicted of two criminal offenses — buying and receiving stolen automobile parts and attempted bribery of a public official, the latter offense stemming from the father's attempt to "fix" a traffic ticket. The father also has two convictions arising out of altercations with the mother, a 2002 conviction for a domestic-violence offense and a 2005 conviction for making harassing communications.

The mother dropped out of high school in the 10th grade and later obtained a G.E.D. Before the marriage, the mother sold clothing at retail and worked as a waitress in bars and restaurants. The parties met at a bar in Mobile and lived together for 18 months before the mother became pregnant. The parties married on July 1, 1994. During the marriage, the father operated an Internet-based multilevel marketing business and invested in real-estate ventures. The mother did not work outside the home during the marriage. Both parties are in good health.

In 1997, the parties separated, the mother filed a complaint for a divorce, and the mother had a brief affair with an old boyfriend, after which the parties reconciled, the mother dismissed her divorce complaint, and the parties participated in marital counseling. The parties lived together until March 29, 2004, when they separated for the final time. On April 2, 2004, the mother filed a complaint for a divorce and a motion seeking pendente lite relief. The trial court entered an ex parte order granting the mother, among other things, temporary exclusive possession of the marital residence, pendente lite custody of the children, and pendente lite support from the father; requiring that the father's visitation with the children be supervised; and prohibiting the parties from wasting or transferring marital assets. The father answered the mother's complaint, counterclaimed for a divorce, and moved the court to order a mental examination of the mother. On June 1, 2004, the mother filed a protection-from-abuse complaint against the father. On July 28, 2004, the mother filed a second protection-from-abuse complaint against the father.¹ The parties filed a number of motions seeking to hold the other in contempt with regard to issues concerning visitation, support, and the dissipation of marital assets.

On June 25, 2005, the parties reached an agreement with respect to temporary issues. That agreement provided, among other things, that the father would have regular unsupervised visitation with the children, that the father would pay temporary support in the amount of $3,250 per month, and that Dr. Catalina Arata would conduct a custodial evaluation of the parties and their children. The agreement, however, did not end the barrage of contempt motions and other pleadings seeking pretrial relief. The mother filed contempt motions in August and September 2005 alleging that the father had violated the trial court's visitation and support orders by failing to return the children at the appointed times, by failing to give the mother notice of taking the children out of state, by disparaging the mother to the children, by damaging the garage of the marital residence and threatening the mother, and by failing to pay the full amount of temporary support. In early September 2005 the father filed a motion seeking to have the mother held in contempt for interfering with his visitation rights and for failing to allow him to transport the children to extracurricular activities. On September 30, 2005, the father filed an instanter motion for temporary custody of the children and possession of the marital residence, alleging that the mother had allowed an unrelated male visitor to spend the night at the marital residence with the children present.

At ore tenus proceedings on April 7, 2006, and May 2, 2006, the following evidence was presented. Dr. Catalina Arata, a licensed clinical psychologist, testified that she had interviewed all four family members, administered psychological tests, and reviewed records relating to the family. She stated that both parents had a history of significant problems with anger management that resulted in a volatile relationship characterized by verbal abuse and occasional outbursts involving some physical aggression. She said that both parents had used the children as "pawns" during the two-year period that the parties' divorce action had been pending, but she thought that the father had been more aggressive in his efforts to alienate the children from the mother. That opinion, combined with the fact that the mother had always been the children's primary caregiver, led Dr. Arata to conclude that the mother was the more fit custodial parent for the children.

The father acknowledged that he had pleaded guilty to a prior domestic-violence offense against the mother, but, he said, he did not understand the implications of his plea. He stated that he had agreed to plead guilty because the district attorney had told him that the parties would be required to attend anger-management classes and he wanted the mother to participate in those sessions. The guilty plea was based on an incident that occurred in December 2001, when the father, who had just returned from a cross-country business trip, was reading a book to the parties' then three-year-old son. The father said that the mother had insisted that it was the child's bedtime and had abruptly turned off the light while the father was reading to the child. The father turned the light back on; the mother grabbed the book, threw it down the hall, and kicked the father in the head. The father testified that he slapped the mother, whereupon she hit him and he grabbed her wrists, pulled her down, and sat on her. According to the father, the mother asked the older son, who was then seven years old, to telephone emergency 911, and the father was arrested at the scene. A few months before the trial of this case, the father was convicted of making harassing communications, with the mother as the complaining witness. The father stated that he had appealed that conviction.

The parties presented evidence of several other physical altercations that had occurred during the marriage. On one occasion, while the family was eating sandwiches, a glass fell on the floor and shattered. The father cleaned up and made new sandwiches, but the mother, saying that she thought there was still glass in the food, "smashed" a sandwich into the father's face and asked, "Would you like to eat broken glass?" On another occasion, the parties began arguing while they were brushing their teeth, and, according to the father, the mother squirted toothpaste all over his glasses.

The father testified that after one of the pendente lite hearings in this case the mother drove her vehicle behind the vehicle in which the father and the two children were riding and, as the father was waiting to pull out of the courthouse parking lot onto a busy highway, "rammed" her vehicle into the rear...