Hadley v. Hadley

202 So.3d 699

Christopher HADLEY

v.Tracey Lynn HADLEY.

Tracey Lynn Hadley

v.Christopher Hadley.

2140608.

Court of Civil Appeals of Alabama.

Jan. 29, 2016.

Stephen P. Johnson of Brackin, McGriff & Johnson, P.C., Foley, for appellant/cross-appellee Christopher Hadley.

Mary E. Murchison, Foley, for appellee/cross-appellant Tracey Lynn Hadley.

THOMAS, Judge.

Christopher Hadley (“the father”) and Tracey Lynn Hadley (“the mother”) are the parents of three children—Corey, born on December 7, 1995; Meghan, born on December 27, 1996; and Kaitlyn, born on May 23, 1999.¹ Kaitlyn has been diagnosed with autism. In January 2004 the parents were divorced by a judgment of the Chancery Court of Shelby County, Tennessee (“the Tennessee Court”), after a lengthy separation during which Corey, Meghan, and Kaitlyn lived in Alabama with James Spears and his wife, Sherry Spears, who are the children's maternal grandparents. In April 2004, the Tennessee court amended its judgment to incorporate the parties' “permanent parenting plan” regarding “all matters having to do with [Corey, Meghan, and Kaitlyn].” Among other things, the permanent parenting plan provided that the father's residence was Corey, Meghan, and Kaitlyn's “primary residence”; that the father was the “day to day decision maker” regarding Corey, Meghan, and Kaitlyn but that the parents were to make decisions regarding Corey, Meghan, and Kaitlyn's education, health, religious instruction, and extracurricular activities jointly; that the mother was entitled to “standard” visitation; and that the mother would pay $440 per month in child support.

In the meantime, on February 11, 2004, the mother gave birth to a son, Gabriel Andrew Spears. The father is not Gabriel's biological father; however, under Alabama law, he is Gabriel's presumed father. See § 26–17–204(a)(2), Ala.Code 1975 (“A man is presumed to be the father of a child if ... he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by ... divorce.”). In 2004, the father relocated to Alabama; Corey, Meghan, and Kaitlyn lived with the father. Approximately one month after the father relocated, the mother and Gabriel relocated to Alabama. Although the parties never remarried one another, they lived together with Corey, Meghan, Kaitlyn, and Gabriel (hereinafter referred to collectively as “the children”). No custody order regarding Gabriel existed at that time.

On July 2, 2008, the parties registered an “agreement of the parties regarding the enrollment of Foreign Judgment Act and amendment” (“the registered agreement”) in the Baldwin Circuit Court (“the circuit court”).² The parties agree that the circuit court adopted the Tennessee court's April 2004 custody order regarding Corey, Meghan, and Kaitlyn and a provision regarding Gabriel's custody in the registered agreement. The registered agreement provided, in pertinent part:

“Paternity: [The father] is adjudicated the father of Gabriel Andrew Spears, and shall have the right to change the birth certificate of said minor child to reflect paternity and change minor child's name to Gabriel Andrew Spears Hadley.

“....

“The parties shall have joint legal custody of Gabriel Andrew Spears.”

In 2011 the mother moved out of the residence she had shared with the father and the children. In 2013 the father notified the mother that he intended to relocate the children to Missouri,³ and, on February 28, 2013, the mother filed in the circuit court an objection to the proposed relocation and a petition seeking an award of sole custody of the children or an order designating her as the children's “primary residential” custodian. The father filed a motion to dismiss the mother's petition, which the circuit court denied. On March 1, 2013, the circuit court entered an order forbidding the removal of the children from Baldwin County pending the resolution of the litigation.

On May 1, 2013, the father filed an answer to the mother's custody petition and a counterclaim in which he requested, among other things, a finding of contempt against the mother and an award of a child-support arrearage. A hearing was held on May 3, 2013. On May 13, 2013, the circuit court entered a temporary order, which reads, in pertinent part:

“The custodial arrangement shall remain the same with the parties hav[ing] joint legal custody of the minor children ... with father having primary physical custody.”

The mother filed a motion seeking a correction of the temporary order in which she argued that neither the Tennessee court's April 2004 judgment nor the registered agreement had awarded the father “primary” physical custody of Gabriel; thus, the mother argued, the circuit court's temporary order conflicted with previous orders and was incorrect regarding Gabriel. After a hearing on the mother's motion, the circuit court amended the temporary order to award the parents joint custody of Gabriel. See § 30–3–151(1), Ala.Code 1975.

In the meantime, on May 29, 2013, the mother filed an emergency motion in which she asserted that the father had committed an act of domestic violence against her in the presence of the children, that he had physically abused Corey, that he had alienated Meghan from her, and that he had refused to allow her to exercise visitation with the children. The mother requested, among other things, a protection-from-abuse order, a finding of contempt against the father, and an order requiring the father to submit to domestic-abuse counseling. After a hearing, the circuit court entered an order in which it found the father in contempt, ordered the father to allow the children to make up five days of visitation with the mother, and ordered the father to pay the mother's attorney fees. The parties continued to display a lack of cooperation, and various motions and responses were filed by the parties.

On December 6, 2013, the mother filed an emergency motion seeking an order allowing Corey to live with her and seeking a restraining order based upon her assertion that the father had committed an act of domestic violence against Corey. Corey filed an affidavit in which he testified that the father had injured him “on multiple occasions” and that the Baldwin County Department of Human Resources (“DHR”) had become involved with the family as a result of the father's violence against him. DHR arranged for Corey to live with Shane Hadley, the father's cousin (“the cousin”), and his wife, Melissa Hadley, until the circuit court entered an order on the mother's motion.

On December 19, 2013, a hearing was held. The resulting order, as modified, noted that the parties had entered into an agreement that had resolved several of the parties' pending motions. Among other things, the circuit court allowed Corey to remain with the cousin until he moved away to attend college in January 2014. The circuit court required the mother and Meghan to continue to participate in counseling together, and it allowed the mother to exercise visitation with Meghan upon the recommendation of the counselor. Thereafter, the parties again remained uncooperative and continued to file various amendments, motions, and responses.⁴

After the January 26, 2015, custody trial, the circuit court entered a final judgment (“the 2015 judgment”) on February 18, 2015. As already mentioned, see note 1, supra, by that time Corey had reached the age of majority and the circuit court appropriately concluded that Corey could not be the subject of a custody order, and, although custody of Meghan was awarded to the father, during the pendency of this appeal Meghan reached the age of majority; thus, we need not fully evaluate Meghan's custody to resolve the issues in this appeal.

Without specifically indicating whether its award was one of joint or sole custody, the circuit court awarded “legal and physical custody” of Kaitlyn to the father and designated him as the “primary decision maker” for Kaitlyn after evaluating the evidence presented under the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984) (“the McLendon standard”)(discussed infra ). Again, without specifically indicating whether its custody award was one of joint or sole custody, the circuit court awarded “legal and physical custody” of Gabriel to the mother and designated her as the “primary decision maker” for Gabriel after evaluating the evidence presented under the best-interests standard set forth in Ex parte Couch, 521 So.2d 987 (Ala.1988). The circuit court's order regarding visitation reads, in pertinent part:

“As to the parenting time of Kaitlyn Hadley and Gabriel Hadley, Father and Mother are to have each respective child during the regular school week and then thereafter are to set it up so they alternate weekends with both children being in the same home at the same time on the weekend. The first weekend after this order is entered, Mother shall begin her weekend visitation with both Gabriel and Kaitlyn by getting both children on Friday after school and returning them both to their school on Monday. During the normal week there shall be no overnight Wednesday visitation as otherwise set forth in Schedule A.”

The circuit court calculated the parties' child-support obligations based upon the father's award of custody of two children (Meghan and Kaitlyn) and the mother's award of custody of one child (Gabriel). It imputed an annual income to the father and a monthly income to the mother, and it credited the father for the expense of procuring the children's medical insurance. It ordered the father to pay the mother $294 per month in child support; however, the father's obligation was offset by the mother's child-support arrearage. The circuit court concluded that the mother had not met her previously ordered child-support obligation for 39 months, and it ordered the mother to pay the father a child-support arrearage of $17,160. The circuit court also ordered the mother to reimburse the father $5,255.45 for her share...