Martin v. Martin

85 So.3d 414

Crysten Ann MARTIN

v.Gary Everett MARTIN.

2100124.

Court of Civil Appeals of Alabama.

July 22, 2011.

Certiorari Denied Dec. 9, 2011

Alabama Supreme Court 1101277.

Thomas A. Radney of Radney, Radney & Jackson, L.L.C., Alexander City, for appellant.

Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham, for appellee.

THOMAS, Judge.

Crysten Ann Martin ("the wife") appeals from a judgment of the Lee Circuit Court ("the trial court") divorcing her from Gary Everett Martin ("the husband").

Facts and Procedural History

The parties were married on March 28, 2002. The parties have one minor child—a son who was born on May 11, 2004 ("the child"). The husband filed for a divorce on May 1, 2009, claiming incompatibility of temperament and an irretrievable breakdown of the marriage. On June 12, 2009, the wife answered and counterclaimed for a divorce. Additionally, the wife filed a "motion for pendente lite hearing and relief," requesting temporary custody of the child, child support, possession of the marital residence, and that the husband be required to pay the parties' debts and obligations pending a final hearing in the divorce action.

The trial court conducted a pendente lite hearing on August 25, 2009. During that hearing, the husband, the wife, and Keela Lee Christopher, the wife's mother, testified. The wife testified that she had engaged in an extramarital affair with a former coworker. She testified that the affair had lasted for approximately six to eight weeks. The wife testified that she has a degree in marketing and that she works in marketing at Hayley–Redd Development, L.L.C., as well as conducting her own personal photography business. Based on the average combined income from her jobs, the wife testified that she made about $3,500 per month. She opined that it would be best to set up two separate homes for the child, instead of allowing both parties to remain in the marital residence together, because of the arguments and "mood" in the household. The wife testified that the "mood" had been altered because the husband had become angry and unpredictable since filing for divorce. Although she had initially requested possession of the marital residence, she testified that she had arranged free housing for both her and the minor child through her employer.

The wife also testified that she should receive custody of the child because she had been the child's primary caregiver for the majority of his life. Specifically, she had stayed at home with the child during the first year of his life; she was the only person to ever cut his fingernails or toenails; she bought all the child's school clothes; and she had relationships with all the child's friends and their parents. She further testified that she was the parent responsible for keeping the household in order by doing laundry, cooking, and cleaning. In contrast, the wife explained, the husband had been responsible for the garage and exterior of the home, which, she testified, he did not keep clean and upon which he failed to perform normal required maintenance.

Further, the wife testified that the husband was not a bad father and that he had the child's best interest in mind. However, she had concerns about his parenting ability because, she said, the husband has attention deficit disorder ("ADD"), for which he takes medication. Additionally, she said that the husband typically consumes two to three alcoholic beverages about five nights a week. She testified that the husband was routinely late, and she feared that the child's routine and structure currently in place would be altered if the husband was awarded custody. Moreover, the wife testified that the husband had been recording her conversations in both the marital home and in her automobile. Specifically, she testified that he had collected over 4,000 hours of recordings, which, she said, he would listen to with headphones while caring for the child.

During the pendente lite hearing, the husband testified that he works at Auburn University in the agronomy and soils department and earns $2,976 per month. He also pays $363.47 per month for health-insurance coverage, which includes coverage for the child. He testified that there was no mortgage on the marital residence because it had been a gift from his parents but that the marital debt consisted of a home-equity line of credit and credit cards solely in his name. The husband testified that the home-equity line of credit had been used to pay off the debt owed on the wife's automobile, to finance family vacations, and for normal expenses during the marriage. He said that the debt was in his name alone because the wife had filed for bankruptcy in 2002.

He testified that the wife was employed during most of the marriage, although, he said, she took a year off when the child was born and had had short stints of unemployment after being discharged by various employers. He testified that he knows how to wash dishes, to do laundry, and to clean house. Further, the husband testified that he does take medication for his ADD and that he drinks about two to three alcoholic beverages per night.

Additionally, the husband testified that he had been involved in every aspect of the child's life. He said that he had taken care of the child without the assistance of the wife on several occasions when she was out of town without any problems. Further, he testified that he had taken the child on trips to visit his parents as well as the wife's parents. The husband testified that he enjoys spending time with the child and that they engage in many outdoor activities together. Moreover, he testified that the wife had attempted to place the child on a schedule and that he had attempted to continue to follow the schedule, although, he said, both parties had strayed from it from time to time. He testified that the wife had expressed a desire to be with the child and to continue caring for him but that he had some doubts as to her parenting capabilities.

The husband requested that the trial court award him custody of the child because he did not feel like the wife was fulfilling her duties as a parent since the time she had engaged in the affair. Specifically, he said, she had been financially irresponsible and inattentive to the child. Additionally, he stated that he had spoken with his employer and that he would be able to take the child to school and pick him up afterwards should he be awarded custody of the child.

Mrs. Christopher, the wife's mother, testified that both the wife and the husband were able and willing parents who had the child's best interest in mind. However, she opined that the trial court should award custody to the husband because the wife was "spinning some pretty big tales" and that she "would like [the wife] to get some help" because, she believed, the path the wife was on could affect the child.

On August 26, 2009, after considering the testimony and the exhibits presented at the hearing, the trial court awarded the husband sole pendente lite custody of the child and allowed the wife "reasonable and liberal visitation" with the child. Moreover, the husband was awarded exclusive control of the marital residence pending the divorce trial, and the wife was ordered to vacate the martial residence and to pay $786.00 per month in pendente lite child support.

On June 4, 2010, the trial court conducted a trial regarding the divorce. The parties agreed to incorporate the testimony from the pendente lite hearing into the record. During the trial, the parties and several additional witnesses testified. Golden Jenkins, a licensed counselor, testified that she had met the wife during a parenting class the parties had been mandated to attend. She opined that the wife had a strong desire to be reunited with the child and that she did not have any concerns about the wife's ability to serve as the child's caretaker. Jenkins said that she had met the husband only briefly, but, she said, during that brief meeting, she did not observe anything that gave her cause to doubt the husband's ability to care for the child. However, she testified that, based on information the wife had shared with her about the husband, she did have some concerns about his parenting abilities. It was undisputed that the husband did not complete the mandated parenting class during the pendency of the divorce action.

Janet Johnson, the principal of the child's school, also testified at trial. She testified that the child had been tardy 13 times since the husband had been awarded sole pendente lite custody. Johnson testified that the wife was active at the child's school and had visited him numerous times during the lunch hour. Johnson further testified that the child never came to school unprepared, dirty, or malnourished.

Dr. Larry Estep, the husband's doctor, testified that he had been treating the husband's ADD for the last three years. He stated that the ADD was fully controlled by medication. Further, he testified that moderate drinking, such as two to three alcoholic beverages per night, in conjunction with taking the husband's prescribed dosage of medication, was not harmful. Additionally, Dr. Estep opined that he had not observed any behavior in the last three years that would limit the husband's ability to function as a good parent.

During the trial, three of the wife's former coworkers testified. Justin Smith testified that he had engaged in an affair with the wife when she worked with him at Kinnucan Enterprises, Inc. He stated that the affair had lasted from the middle of March until the end of May 2009 and that they had rekindled their relationship sometime in the fall of 2009. He also testified that the wife had given him monetary gifts totaling approximately $1,000. However, he stated that he had repaid some, but not all, of that money. Smith opined that the husband had taken care of the child when the wife was spending time with him throughout the affair. Robert Charles Lake...