72 So. 3d 701
Ala. Civ. App.2011Background
- The wife sought custody, child support, and alimony following a June 2009 separation; the husband was the primary breadwinner and the wife was the stay-at-home caregiver.
- Pendente lite orders gave the wife physical custody and financial status-quo protections, with both parties restricted from negative conduct around the children.
- An ore tenus trial occurred on April 29, 2010; both spouses testified about caregiving roles, finances, and the husband’s real-estate investments and debts.
- The trial court awarded joint legal and physical custody, with weekly rotating physical custody and no child support, and assigned debt and property to each party; the husband was to cover tax debts and the wife had no alimony.
- The wife argued for alimony (periodic or alimony in gross) and attorney’s fees; the husband emphasized ongoing financial problems but sought joint custody.
- The trial court entered judgment the same day, affirming joint custody but denying alimony and attorney fees; on appeal, the wife challenged custody, alimony, and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the custody award was proper | Lowery contends joint custody was inappropriate. | Lowery argues court properly awarded joint custody based on best interests and evidence from ore tenus proceedings. | Court upheld the joint custody award. |
| Whether alimony should have been awarded | Lowery asserts entitlement to periodic or alimony in gross due to income disparity. | Lowery maintains no alimony is needed given joint custody and property division. | Court reversed for failure to award periodic alimony. |
| Whether attorney fees should have been awarded | Lowery seeks attorney’s fees based on financial disparity and litigation results. | No explicit contention presented by Lowery’s opponent, but court considers fee factors on remand. | Court affirmed consideration of potential fee on remand; award left to remand discretion. |
Key Cases Cited
- Ex parte Couch, 521 So. 2d 987 (Ala. 1988) (custody initial determinations hinge on best interests; no presumptive entitlement)
- Smith v. Smith, 727 So. 2d 113 (Ala. Civ. App. 1998) (no presumption of entitlement to custody in divorce actions)
- Kovakas v. Kovakas, 12 So. 3d 693 (Ala. Civ. App. 2008) (appellate review of custody awards respects trial court's discretion)
- Kent v. Green, 701 So. 2d 4 (Ala. Civ. App. 1996) (factors for custody include age, needs, and home environments)
- Ex parte Fann, 810 So. 2d 631 (Ala. 2001) (credibility and demeanor during ore tenus proceedings are highly important)
- Ex parte Devine, 398 So. 2d 686 (Ala. 1981) (statutory factors guiding custody considerations)
- C.B.B. v. J.S.D., 831 So. 2d 620 (Ala. Civ. App. 2002) (appellate review of conflicting evidence in custody cases)
- Ex parte Elliott, 782 So. 2d 308 (Ala. 2000) (equitable division of property; no fixed standard for alimony)
- Golden v. Golden, 681 So. 2d 605 (Ala. Civ. App. 1996) (considerations for property division in dissolution)
- Morrison v. Morrison, 540 So. 2d 80 (Ala. Civ. App. 1989) (factors supporting property division decisions)
- Glover v. Glover, 678 So. 2d 174 (Ala. Civ. App. 1996) (factors for awarding attorney’s fees)
- Figures v. Figures, 624 So. 2d 188 (Ala. Civ. App. 1993) (considerations in awarding attorney’s fees)