Joel Lynn Summers v. Cayce Lane Summers

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REL: 4/30/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter o f Decisions, A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2009-2010 2080457 Joel Lynn Summers v. Cayce Lane Summers Appeal from Lauderdale C i r c u i t Court (DR-07-576.01) PITTMAN, Judge. J o e l L y n n Summers of t h eLauderdale L a n e Summers as c h i l d ("the f a t h e r " ) a p p e a l s Circuit Court ("the m o t h e r " ) , from a judgment t h a t d i v o r c e d h i m from Cayce o r d e r e d h i m t o p a y $760 p e r month support, awarded t h e mother p r i m a r y p h y s i c a l custody 2080457 of the c h i l d born of the marriage, couple's m a r i t a l assets, in response to perjury during the and d e c l i n e d father's trial. fashioned a d i v i s i o n of the to sanction allegations We a f f i r m i n p a r t , that t h e mother she reverse suborned i n part, and remand w i t h i n s t r u c t i o n s . The r e c o r d having the lived shows that together the parties married f o r approximately father f i l e d simultaneously i n 2000 two y e a r s . I n 2007, a petition forprotection abuse a n d a c o m p l a i n t i n w h i c h he s o u g h t a d i v o r c e , division procedural delays, of the marital t h e c a s e was estate. tried After i n 2008 trial several That trial the testimony of the mother, the f a t h e r , r e l a t i v e s of b o t h p a r t i e s , a n d a p s y c h i a t r i s t who The a n d an on one d a y i n J u n e , two d a y s i n A u g u s t , and one d a y i n November. featured from temporary custody of the p a r t i e s ' minor c h i l d pending a hearing, equitable after court entered had t r e a t e d i t s judgment the mother. i n December 2008 and d e n i e d t h e f a t h e r ' s p o s t j u d g m e n t m o t i o n i n J a n u a r y 2009, a f t e r which the father The the first sanction father being timely asserts that t h e mother appealed to this four the primary trial 2 contentions court f o r her alleged court. erred on appeal, in failing subornation of to perjured 2080457 testimony. mother At t h e June testified that, hearing, within a witness the f i r s t called few years by the after the p a r t i e s were m a r r i e d , t h e f a t h e r had g i v e n t h e w i t n e s s in exchange brought f o r sexual t o the August detective he mother's had on hearings hired witness. recording favors. to That which In rebuttal, h i s own gather the mother's the father witness, information d e t e c t i v e produced cocaine a private about at t r i a l witness could the a be tape heard a d m i t t i n g t o having t e s t i f i e d f a l s e l y i n t h i s case i n exchange for money a t t h e m o t h e r ' s r e q u e s t . unverified, handwritten witness's formal described an paid However, showing testimony. c o u r t h a d no l o g i c a l testimony, h i s perjury; that the be no (who, the document a s t h e o n e who t h e f a t h e r made t h e mother to attempt had to incidentally, h a i r ) k n e w t h a t t h e t e s t i m o n y was f a l s e w h e n g i v e n , much l e s s d e m o n s t r a t i n g perjured of purporting " o l d e r , d a r k - h a i r e d " woman evidence has b l o n d e document confession the witness. adduce The f a t h e r a l s o a d d u c e d a n t h a t t h e mother suborned Given before it, the t r i a l b a s i s f o r d e c i d i n g whether the witness's the witness's "confession," the evidence the allegedly audiotaped o r none o f them, 3 claim, represented the unverified the truth. 2080457 As the father p e r j u r y are and notes, perjury seq. However, party i s due t o be trial court, S h o n k w i l e r v. App. 2000), sanctioned and a in the contempt of upon adjudication an reasonable presented trial court the court the the subornation Kriska, party 780 can manner Given trial court, acted outside mother for we its by proof the of the of for "only beyond a evidence that the failing by perjury the (Ala. father guilt a criminal conclude discretion of 706 equivocal cannot subornation whether 703, punished sought Id. 2d of 13A-2-23 discretion So. be upon §§ determination i s w i t h i n the based doubt." to sanction the c r i m e s i n A l a b a m a , see A l a . Code 1975, 13A-10-101 e t Civ. and to in its final trial court judgment. The erred father's i n awarding mother lengthy in view and of freely mental-health testimony issuance of a contention custody of the "best admitted problems, perjured earlier second the ( w h i c h we protection i n the proceedings. the i s that parties' interests" history mother's of order The 4 minor test, entered child the substance alleged have a l r e a d y the to mother's abuse procurement discussed), against mother admitted the the and and of the mother t h a t she had 2080457 taken a v a r i e t y of p r e s c r i b e d p a i n k i l l e r s as well as illegal drugs beginning and a n t i d e p r e s s a n t s i n her teen years; that d r u g a b u s e p e r s i s t e d t h r o u g h two m i s c a r r i e d p r e g n a n c i e s d u r i n g the p a r t i e s ' the child from and whose those primarily the large m a r r i a g e up t o t h e t i m e she became p r e g n a n t custody i s at admissions, i n the father form pertinent of t r i a l flatly issue in this appeal. evidence was testimony i n which contradicted each other's with Aside provided the mother accounts in measure. Our standard determination is of review as to the trial court's custody deferential: "'A t r i a l court's custody determination following the p r e s e n t a t i o n of ore tenus evidence i s presumed c o r r e c t , a n d t h a t j u d g m e n t w i l l n o t b e s e t a s i d e on appeal absent a f i n d i n g t h a t the t r i a l c o u r t abused its discretion or that i t s d e t e r m i n a t i o n i s so u n s u p p o r t e d b y t h e e v i d e n c e as t o be p l a i n l y and p a l p a b l y wrong. ' S t e e d v . S t e e d , 877 S o . 2 d 602, 604 ( A l a . C i v . App. 2003). ' T h i s c o u r t may not substitute i t s judgment for that of the trial court.' S o m e r s v . M c C o y , 777 S o . 2 d 1 4 1 , 142 ( A l a . Civ. App. 2 0 0 0 ) . 'The c o n t r o l l i n g c o n s i d e r a t i o n i n c h i l d - c u s t o d y matters i s always the best i n t e r e s t s of the c h i l d . ' P a t r i c k v . W i l l i a m s , 952 So. 2d 1 1 3 1 , 1140 ( A l a . C i v . App. 2006)." M c C a r t n e y v. M c C a r t n e y , 2007). Moreover, t e s t i m o n y , we 11 S o . when a 3d 213, trial court must r e v i e w t h e e v i d e n c e 5 220-21 (Ala. Civ. hears in a light App. conflicting that favors 2080457 the p r e v a i l i n g p a r t y . 661 ( A l a . C i v . App. The limited offered 959 S o . 2 d 6 5 8 , 1996). factors the t r i a l the best i n t e r e s t s not M c C l e l l a n v. M c C l e l l a n , c o u r t s must c o n s i d e r i n d e t e r m i n i n g of a child a r e many; t h e y i n c l u d e , to, the child's by the p a r t i e s ; needs; t h e home the characteristics but are environments of the parties, i n c l u d i n g t h e i r c h a r a c t e r and mental h e a l t h ; t h e r e l a t i o n s h i p s between matter 2d each parent the evidence 686, 696-97 and t h e c h i l d ; ( A l a . 1981). would assume t h a t be n e c e s s a r y f i n d i n g s would Kelly, 398 S o . Finally, findings the t r i a l when t h e t r i a l of fact, i t s judgment erroneous. court as i n t h i s c o u r t made t h o s e t o support n o t be c l e a r l y relevant Ex p a r t e Devine, may d i s c l o s e . " does n o t p r o v i d e s p e c i f i c we w i l l and "any o t h e r case, findings so long that as See, e.g., K e l l y v. 981 So. 2 d 4 2 3 , 426 ( A l a . C i v . A p p . 2007). A s i d e from t h e mother's a d m i t t e d p a s t problems with drugs and d e p r e s s i o n , n e a r l y e v e r y f a c t o r b r o u g h t i n t o e v i d e n c e the trial court might have weighed such i n making i t s that custody d e t e r m i n a t i o n was p r e s e n t e d i n t h e f o r m o f d i s p u t e d t e s t i m o n y . The father testified, and t h e mother admitted, had flares o f temper i n years p a s t t h a t might 6 to her having have been caused 2080457 by her prescription that drugs. she had improved, The mother testified, however, and she added t h a t t h e f a t h e r had been subject to violent o u t b u r s t s as w e l l . Each p a r t y accused the other of domestic violence, alcohol other incidents Both both of bad testified conquered called the parents problems, were loving by and t h a t she had with prescription drugs, s h e was a t t e n d i n g c o l l e g e i n o r d e r t o capacity. The father was earning $60,000 p e r y e a r , b u t he a d m i t t e d t h a t he o f t e n w o r k e d hour and as w i t n e s s e s The m o t h e r t e s t i f i e d her problems and a t t h e t i m e o f t r i a l her earning members that a t t e n t i v e toward the c h i l d . essentially or conduct. p a r e n t s , and f a m i l y parents, improve drug d a y s p e r week, l i m i t i n g t h e t i m e he c o u l d spend over 6 10¬ with the child. With mother respect to the protection early in these order entered against the proceedings, the circumstances accompanying t h e i s s u i n g o f t h a t o r d e r would have been factor f o r the trial court to determination. The s h a r p c o n f l i c t s made court's the t r i a l credibility task a in i t s custody i n the parties' pure of witnesses, because 7 consider matter t h e mother of another testimony judging the and the father 2080457 contradicted greater threat father's the each own trial f o r an other of as domestic ex p a r t e which party violence. representations court's to to the estimation In court presented that may regard, have of h i s c r e d i b i l i t y . protection-from-abuse order, the the the influenced In applying father filed a c o m p l e t e d " P r o t e c t i o n f r o m A b u s e S t a t i s t i c F o r m " on w h i c h he alleged to this that there action" were (emphasis added). charges were filed by a f i s t f i g h t t h a t the with the mother. mother had filed alternately her having never evidence of with thrown an a to in investigate of father the court to the knife show attempt Human whether fact, the sister making the related pending had leg with seek the mother 8 a stuck of first f a t h e r had ("DHR") was an that the knife, in the father "stabbing" in his a aid. and as l e g , but he bodily unfit scar or Further, contacted and with initiated a testimony, as criminal i n connection accusation presence Resources the in incident the to an i n the and that perhaps most s i g n i f i c a n t l y , Department In father's Later, referred attempted the c r i m i n a l charges s i s t e r l a t e r admitted to having "stabbed" documents "pending the caused parent. and local them to Upon 2080457 completion of intervention It a witness 5 was i s the credibility any i t s or was 3d province of willfully the and on 1220, 1233-34 App. light n o t be The 7, that in this applies no to case. our court may the record, the Given review, Cochran, the trial the we trial judgment evidence. 3d A.M. , court's cannot v. (Ala. i f viewed deferential that disregard C o c h r a n v. So. i n the the concludes d i s t u r b e d i f the by f a v o r i n g the mother, supports determination that estimate Further, 2009] evidence to court 2008). f i n d i n g s i s supported 2009). courts testimony. (Ala. J.S.,[Ms. 2071213, August Civ. trial untruthful, that that witness's the determined i f a trial c o u r t ' s f i n d i n g s of f a c t w i l l based DHR indicated. of w i t n e s s e s , a l l of So. investigation, in a custody standard reverse that determination. The its of father also contends property division. the father awarded personal property considered the mother unencumbered by The that trial she parcel the undeveloped awarded the 9 court erred i n c l u d i n g items Further, of a mortgage and trial in c o u r t awarded the mother a l l requested, "disputed." a the trial real the court property f a t h e r the m a r i t a l 2080457 residence, well as which by the is encumbered remaining awarded to the mother. several years undeveloped property that, on balance, the f a t h e r had the during the i t s own on debt The preceding by and he division for purchased The as property owned t h e r e s i d e n c e the marriage. court's debt undeveloped marriage, trial mortgage father the asserts of p r o p e r t y was inequitable. The standard determinations court's judgment v. ore Jenkins, outside be the and 1271 a the So. 2d are judgment division 986, 988 within property of property must be McClelland ( A l a . C i v . App. 2002) A trial plainly See, before the (citing cases). e.g., broad palpably judgment v. M c C l e l l a n d , 841 can So. Further, "[e]ach case i s decided on i t s own peculiar f a c t s and c i r c u m s t a n c e s . C r i t e r i a which should be c o n s i d e r e d by t h e t r i a l c o u r t when a w a r d i n g a l i m o n y and dividing property i n c l u d e the l e n g t h of the p a r t i e s ' marriage, t h e i r ages, h e a l t h , s t a t i o n i n l i f e , and f u t u r e p r o s p e c t s ; the s o u r c e , v a l u e , and type of p r o p e r t y owned; the standard of l i v i n g to w h i c h t h e p a r t i e s h a v e become a c c u s t o m e d d u r i n g t h e 10 on 2000) . court's and trial based ( A l a . C i v . App. the that discretion appeal. of tenus i s presumed c o r r e c t . issues scope of d i s t u r b e d on 1264, 781 review cases i s a l s o d e f e r e n t i a l . regarding Property-division discretion, appellate i n divorce evidence presented Jenkins of 2d 2080457 marriage and t h e p o t e n t i a l f o r m a i n t a i n i n g that standard; and, i n appropriate situations, the conduct of t h e p a r t i e s w i t h r e f e r e n c e t o t h e cause of d i v o r c e . " Currie v . C u r r i e , 550 S o . 2 d 4 2 3 , 4 2 5 Ultimately, "'"[p]roperty 1989). are not required divisions ( A l a . C i v . App. t o be e q u a l , b u t must be e q u i t a b l e i n l i g h t o f t h e e v i d e n c e , determination discretion 2d of the t r i a l 358, 361 308, 310 Duckett, noted ( A l a . 2000) court."'" the ore tenus '"'view prevailing when quoting trial in a light McClellan, other the of t r i a l t h e mother t h e same tending s h e was time, to prove only the t r i a l that, Duckett most And, as presented i n this v. with case, favorable "we to the (quoting ( A l a . C i v . App. 2005), cases). home s i n c e g i v i n g b i r t h time At case, 785 So. 686 S o . 2 d 959 S o . 2 d a t 661 quoting this i s a s i t was 910 S o . 2 d 1 2 7 4 , 1 2 7 5 In i n turn court Diggs v. Diggs, i n turn Drummond, ( A l a . C i v .App. 1 9 9 5 ) ) . evidence, the evidence party.'"'" Ex p a r t e 1996), 669 S o . 2 d 1 9 5 , 197 above, r e s t s w i t h i n t h e sound ( q u o t i n g Morgan v. Morgan, ( A l a . C i v . App. conflicting must as t o what i s e q u i t a b l e and t h e had not been t o the couple's beginning court at various 11 employed child, t o develop heard times outside and a t t h e job skills. disputed testimony between t h e f a t h e r ' s 2080457 initiation of father harassed had these proceedings the allegedly killing which substantial, was A s s u m i n g , a s we credibility trial mother dogs. was o u t s i d e the the i t s calculation time mother, of earning capacity, i n h i s own exhibits. court's determination of we cannot conclude in this court's that support. the The that the plainly c a s e was contends and discretion. trial trial court erred court ordered t h e f a t h e r t o pay $760 p e r month as c h i l d s u p p o r t , to the date divorce. amount the Since from the father the initially father time the had court determined that the father of had $3,510 entered. as that The to c h i l d refer trial support to Rule calculated filed been parties accrued at his paying had retroactive complaint less separated, owed t h e m o t h e r an the time c o u r t d i d not p r o v i d e any i n i t s judgment, 3 2 , A l a . R. nor the support. 12 for than a that the trial arrearage judgment was findings of fact d i d the t r i a l J u d . A d m i n . , o r i n d i c a t e how i t s award of c h i l d the including of the t r i a l of c h i l d trial, ways, father's demonstrated scope father the various must, t h a t the t r i a l favored the Finally, in The court's property division palpably in her and court i t had 2080457 "We have r o u t i n e l y r e v e r s e d judgments b a s e d upon b y t r i a l j u d g e s t o c o m p l e t e C S - 4 2 f o r m s w h e n we the basis for [a] child-support F a r n e l l , 3 So. 3d Farnell v. A trial court if that may court deviate makes award 203, 206 cannot discern the record." from ( A l a . C i v . App. from the g u i d e l i n e s written failures findings of 2008). o f R u l e 32 fact, based on Id. In evidence presented to i t , to support the d e v i a t i o n . this case, earnings payroll of of, notice and CS-42 form nearly a The would amount be Form CS-42 an cases based on relating at which with after t o the scope case i s governed things, he had annual hourly the trial Rule 32, c l a i m of income near filed to the father's h i s most recent completed. income of The $60,000, s u g g e s t e d an a n n u a l i n c o m e p o t e n t i a l had used the g u i d e l i n e s under for as earnings and overtime payroll notice. consistent father's other suggested $80,000, i n that evidence among the p a y r o l l notice indicated the documentary consisted father's while the only that January of that b y R u l e 32 1, court A l a . R. a r r i v e d -- $760 Jud. Admin., based $60,000, i f t h e t r i a l court r u l e t h a t went i n t o e f f e c t 2009. r u l e as Under the preface amended, h o w e v e r , as i t r e a d i m m e d i a t e l y b e f o r e 13 -¬ this the 2080457 2009 amendment. applies if Under to t h i s the c a s e and father's obligation would CS-42 f o r m . the earlier the I f the was $652, the trial of guidelines chart income be version $60,000, amount court Rule then i n his shown 32 that effect, child-support in his imputed a higher proffered income t o f a t h e r , h i s c h i l d - s u p p o r t o b l i g a t i o n under the v e r s i o n of 32 that applies in this we have i n s u f f i c i e n t i n f o r m a t i o n determine award, how and we remand t h i s fact or the its i t its the for the has of i n the court court that determined. the father's to is also reversed its to that the Because the child-support and Clearly, to child-support provide support $760 m o n t h l y c h i l d - s u p p o r t judgment at j u d g m e n t as trial t o $804. Rule r e c o r d t o e n a b l e us arrived the computations determination b a s e d on trial must r e v e r s e case obligation c a s e c o u l d r a n g e up the award findings and of child-support trial court's arrearage award, t h a t a s p e c t remanded for was of further proceedings. Based trial on court's determination, matter of the the f a c t s and judgment is authorities discussed affirmed as to i t s d i v i s i o n of m a r i t a l property, above, its and custody as t o mother's a l l e g e d subornation of p e r j u r y . 14 the As the to 2080457 the t r i a l determines c o u r t ' s award o f c h i l d the child-support support, which arrearage t o be c h a r g e d father, t h e judgment i s r e v e r s e d and t h e case further proceedings AFFIRMED consistent with this I N PART; REVERSED of necessity to the i s remanded f o r opinion. I N PART; AND REMANDED INSTRUCTIONS. Thompson, P.J., and Bryan Thomas, J . , c o n c u r s and Moore, J J . , concur. i n the result, 15 without writing. WITH

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