Rogers v. Rogers

307 So.3d 578

Trista Lynn ROGERS

v.Robert ROGERS III

2170980

Court of Civil Appeals of Alabama.

August 30, 2019

Rehearing Denied November 8, 2019

Certiorari Denied April 10, 2020

Alabama Supreme Court 1190165 and 1190166

Joan-Marie Sullivan, Huntsville, for appellant.

John Olszewski of Minor & Olszewski, L.L.C., Montgomery; and Randall W. Nichols of Massey, Stotser & Nichols, PC, Birmingham, for appellee.

DONALDSON, Judge.

Trista Lynn Rogers ("the mother") appeals from a judgment of the Franklin Circuit Court ("the trial court") modifying the judgment divorcing her from Robert Rogers III ("the father") and granting the father sole physical custody of G.L.R. and L.A.R. ("the children"). We reverse the judgment and remand the case with instructions.

Facts and Procedural History

This is the third time the parties have been before this court from the underlying modification action. In Rogers v. Rogers, 260 So. 3d 840 (Ala. Civ. App. 2018), we set forth the following facts and procedural history of the modification action:

"On June 17, 2015, the trial court entered a judgment divorcing the parties. The divorce judgment, which incorporated an agreement reached by the parties, granted the parties joint legal and physical custody of the children.^[1] On June 14, 2016, the father filed a complaint seeking modification of the divorce judgment to obtain sole legal and physical custody of the children, child support from the mother, and a finding of contempt against the mother for noncompliance with the divorce judgment. The mother filed an answer and a counterclaim seeking sole legal and physical custody of the children, child support from the father, and a finding of contempt against the father. A guardian ad litem was appointed to represent the children's interests.

"On July 1, 2016, the mother filed a motion requesting that Judge Terry Dempsey, who had been presiding over the case, recuse himself. On July 5, 2016, the trial court entered an order denying the motion to recuse. On July 11, 2016, the mother filed a petition for a writ of mandamus to this court seeking an order directing Judge Dempsey to recuse himself. This court denied the mother's petition, holding that, even though Judge Dempsey had previously recused himself in the parties' divorce action, the present action was a separate case and the mother had not demonstrated a clear legal right to the recusal of Judge Dempsey in this action. Ex parte Rogers, 218 So. 3d 859, 867 (Ala. Civ. App. 2016).

"On August 2, 2016, the parties reached a mediated agreement regarding the father's visitation pending the outcome of the case. The parties did not reach an agreement as to the other issues in the case.

"On March 23, 24, and 27, 2017, the trial court conducted a hearing in which it received ore tenus testimony. At the time of the hearing, G.L.R. was seven years old and L.A.R. was five years old."

260 So. 3d at 841-42.

The mother lives in Decatur, and the father lives in Russellville with his current wife and stepchild. During the ore tenus hearing, the father testified that, since the parties' divorce, G.L.R. had been hospitalized for 9 to 10 days and eventually had been diagnosed with systemic juvenile idiopathic arthritis. In her testimony, the mother described juvenile idiopathic arthritis as an autoimmune disease that affects G.L.R.'s joints and could affect her liver, spleen, and eyes. The mother further testified that, if the disease remains untreated, G.L.R. could develop pain and stiffness, which could affect her ability to walk, and inflammation, which could cause blindness, and that there was the possibility that G.L.R. could die from the disease. According to the father, G.L.R. had been receiving infusion treatments at Vanderbilt University Medical Center in Nashville, Tennessee, every two weeks but, he said, about two months before the trial the treatments stopped controlling her disease and the doctors were trying to obtain approval for her to take a drug that required daily injections.

The father testified that the divorce judgment granted the mother decision-making authority over medical decisions. According to the father, once she was diagnosed with the disease, G.L.R. had to have her eyes screened as early as possible. The father testified that G.L.R. did not have her eyes checked for over two months after being advised to do so because the mother did not schedule an appointment. In her testimony, the mother attributed the two-month delay to her not being able to find an eye doctor she thought was suitable and having to ask a doctor at Vanderbilt University Medical Center for a referral.

The father testified that, regarding G.L.R.'s participation in playing for a softball team, G.L.R.'s doctor had told the mother and him that it was good for G.L.R. to be active and to let pain be the guide in the level of activity but recommended against overhand throwing motions. The father testified that at times G.L.R. complained of pain and that the mother did not follow the doctor's instructions about letting pain be the guide. The mother testified that, after G.L.R. had complained of pain in her shoulder on one occasion, she talked to G.L.R. and told her that she needed to attend her softball practice because the team was depending on her but also stated that G.L.R. did not have to play if she was hurting during the practice. The mother further testified that G.L.R. stated that she did not want to practice and that she responded by telling G.L.R. that she had to try.

The father testified that, on February 28, 2017, G.L.R. had appointments with doctors at Vanderbilt University Medical Center for testing and treatment and that, in the morning on the next day, she had an appointment for further treatment. The mother testified that she had driven G.L.R. to Nashville on February 28, 2017, for her appointment that lasted until 8:00 p.m., that she drove them to her residence afterward, and that she drove them back to Nashville for G.L.R.'s morning appointment. According to the father, he had notified the mother that he was staying overnight in Nashville between the two days of appointments and offered to let G.L.R. stay with him. The father testified that there had been only 15 hours between the appointments and that he had not wanted G.L.R. to unnecessarily spend 4 to 5 hours between these appointments traveling. The mother testified that the traveling had been fine and that L.A.R. becomes worried when G.L.R. goes to her medical appointments. In her testimony, the mother agreed that she and the father had previously reached an agreement regarding the father's visitation to avoid less travel time for the children and that, with her condition, G.L.R. can become stiff during long automobile rides.

At the time of the trial, G.L.R. attended an elementary school in Decatur and L.A.R. was enrolled in a preschool in Decatur. The father testified that, during his visitation periods, he would drive about an hour to transport the children to and from school. When the divorce judgment was entered, the mother worked in a school near the elementary school and the preschool. The mother's employment was not renewed in 2016, however, and she obtained another job with the Huntsville school system for about a month. She then began working for a high school in Moulton in September 2016. According to the testimony of the mother and the father, the mother's workplace was a 25-30 minute drive from the children's schools. The mother employed a high-school student to take the children to school several days a week.

The father testified that he was concerned about the distance between the mother's workplace and the children's schools in the event of an emergency, but he acknowledged that no emergency had occurred so far. The father testified that, if he were to have custody of the children, he would enroll the children in schools in Russellville. He testified that G.L.R. could attend a school where his wife worked, which is located less than a 10 minute drive from his house and is near his workplace. The father testified that the children had lived in Russellville before and that, if they attended school in Russellville, the children would have friends and know other children from church and social events.

When asked if, in the event that the father had physical custody, she would like the opportunity to watch either child if the child was sick, the mother testified:

"Well, it just depends. If the child is sick and they're at home in their pajamas, I mean, asking them to ride in a car for an hour and a half because I assume he wouldn't want me in his home. I mean, asking a child to ride for an hour and a half so I could watch them for six hours, and then put them back in a car for another hour and a half, I don't know that that's exactly feasible."

The father testified that, since the entry of the divorce judgment, he has worked at a bank in Russellville and that he still lives in the same residence. According to the father, he has 10 or more family members in the area who could help in the case of an emergency with the children. Cynthia Ham, the mother's mother, testified that she helped care for the children and that her mother and the mother's two brothers could also help with the children.

The mother testified that her contract had not been renewed with the Decatur school system because she had not obtained a master's degree by May 2016. As to her leaving her job with the Huntsville school system, the mother testified: "I wanted to get closer to my girls and, frankly, find a job that better fit me." The mother admitted that, even after her contract with the Decatur school system had not been renewed, she had indicated on job applications that she had never had her contract not renewed. The mother testified that she has notified her current employer of G.L.R.'s diagnosis, and, according to the mother, her employer stated that it would accommodate her when she needed to take time off for G.L.R.'s...