Turner v. Turner
210 So. 3d 603
Ala. Civ. App.2016Background
- Mother (Jamie Turner) filed for divorce on Nov 27, 2012; father (Courtney Thomas) defended. Child C.A.T. was born to mother before marriage but was stipulated to be the parties’ child.
- Father sought custody; trial court awarded sole physical custody to father, ordered mother to pay child support, reimburse certain child expenses, pay guardian ad litem (GAL) fees, and pay $15,000 of father’s attorney’s fees.
- Evidence at trial showed the mother had a post-filing intimate relationship with Jamie Gamble, who fathered two children with her (one born Dec. 29, 2013, another Dec. 10, 2014); Gamble has an extensive felony record and was incarcerated during trial.
- Record contained reliable evidence of the mother cohabiting and having sexual relations with Gamble after the divorce complaint but insufficient evidence those acts occurred before the filing.
- Trial court found several parental-fitness concerns (e.g., child left with Gamble after an accident, medication lapses, school absences), some of which were unsupported by the record; custody was decided on child’s best interests.
- Trial court awarded GAL fees (court ordered each party to pay roughly $3,087.75); mother moved to challenge reasonableness. Court ordered mother to pay $15,000 of father’s attorneys’ fees; appellate court reversed that portion and remanded for articulation/reconsideration.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| Validity of adultery ground for divorce | Mother: Adultery occurred after complaint; insufficient pre-filing evidence | Father: Pointed to secrecy, contacts with Gamble before filing as circumstantial support | Reversed—insufficient evidence of adultery before filing; post-filing adultery cannot alone support divorce |
| Custody award to father | Mother: Trial court improperly excluded child’s testimony and relied on mother’s adultery | Father: Custody based on best interests and evidence of risk from mother’s relationship with Gamble | Affirmed—court permissibly excluded child testimony (issue waived/unchallenged below); custody supported by best-interests evidence related to mother’s relationship and caregiving concerns |
| Child support / imputed income | Mother: Father was voluntarily underemployed; income should be imputed | Father: Worked part-time, increased hours/pay, promoted; not voluntarily underemployed | Affirmed—trial court did not abuse discretion in using father’s actual income |
| Fees: GAL and father’s attorney fees | Mother: GAL fees excessive; cannot afford; objected to $15,000 attorney-fee award | Father: Fees warranted by litigation complexity and prevailing result | GAL fees: Affirmed as reasonable for portion charged. Attorney fees: Reversed and remanded—trial court abused discretion by ordering $15,000 without articulating basis and creating inequitable burden |
Key Cases Cited
- Morgan v. Morgan, 183 So.3d 945 (Ala. Civ. App. 2014) (adultery must be shown to have occurred before divorce complaint filing)
- Smith v. Smith, 599 So.2d 1182 (Ala. Civ. App. 1991) (post-filing adultery admissible only to corroborate pre-filing adultery)
- Maddox v. Maddox, 201 So.2d 47 (Ala. 1967) (adultery evidence must support a reasonable inference of adultery)
- J.H.F. v. P.S.F., 835 So.2d 1024 (Ala. Civ. App. 2002) (adultery may be considered for custody only if it directly bears on child welfare)
- Ex parte Devine, 398 So.2d 686 (Ala. 1981) (parent’s financial ability is a factor in custody determinations)
- Cooper v. Cooper, 160 So.3d 1232 (Ala. Civ. App. 2014) (standard for appellate review when child’s testimony excluded)
- Englund v. First Nat’l Bank of Birmingham, 381 So.2d 8 (Ala. 1980) (trial court discretion to fix guardian ad litem fees)
- Pharmacia Corp. v. McGowan, 915 So.2d 549 (Ala. 2005) (trial court must articulate basis for attorney-fee awards to permit meaningful appellate review)