Opinion
2200861
04-22-2022
Chelsea Woodall Dowdy v. Jeremy Dowdy
Appeal from Lee Circuit Court (DR-20-900395)
MOORE, JUDGE.
Chelsea Woodall Dowdy ("the mother") appeals from a judgment entered by the Lee Circuit Court that modifies a judgment divorcing her from Jeremy Dowdy ("the father") to award the father sole physical custody of the parties' child, C.D. ("the child"). We affirm the judgment.
Procedural History
The parties were divorced by a March 28, 2017, judgment entered by the Superior Court of Muscogee County, Georgia ("the Georgia judgment"). Pursuant to the Georgia judgment, which incorporated an agreement of the parties, the parties were awarded joint legal and physical custody of the child, who was born on July 14, 2015, and the father was ordered to pay to the mother child support in the amount of $600 per month. According to the Georgia judgment, the mother was to exercise custody of the child every Monday and Tuesday, the father was to exercise custody of the child every Wednesday and Thursday, and the parties were to alternate custody of the child every other weekend, which was defined as "Friday until the following Monday when the child is returned to daycare."
On December 14, 2020, the mother filed in the Lee Circuit Court a verified petition for registration and modification of the Georgia judgment. See § 30-3B-305, Ala. Code 1975. The mother asserted in her petition that her current husband is in the military and that he had received orders to relocate to Fort Hood, Texas, beginning on June 20, 2021. The mother sought a modification of the Georgia judgment to award her, among other things, sole physical custody of the child, subject to the father's visitation. The father filed an answer to the mother's petition and a counterclaim requesting that, if the mother moved to Texas, he be awarded sole physical custody of the child and monthly child support pursuant to Rule 32, Ala. R. Jud. Admin.
On February 1, 2021, the Lee Circuit Court entered an order transferring the case to the family-court division of Lee Circuit Court ("the trial court"). See § 12-17-24.2(a), Ala. Code 1975, and § 45-41-80.03(b), Ala. Code 1975 (Local Laws, Lee County) (providing that the family-court division of Lee County shall handle all circuit-court cases and proceedings involving, among other things, custody and support of children). On February 9, 2021, the trial court entered an order registering the Georgia judgment. A trial was conducted on June 9, 2021. On June 23, 2021, the trial court entered a judgment modifying the Georgia judgment and reciting the following findings of fact:
"Since their divorce, the parents have shared joint legal and physical custody of [the child] and have done so admirably. Both parents have remarried to people who seem to be good human beings. The father's wife holds a bachelors in family and child development and seems to be great with this child and children in general. The mother's husband is serving our nation in the Army and moving up the ranks rapidly. Neither party has any substantial complaints about the other's chosen spouse. However, as is usually the case, becoming part of a military family requires relocation, and therein lies the rub in
this case. The mother filed this action asking to modify the prior order and grant her primary physical custody because her new husband has received orders from the Army to relocate to Texas. The father has counter-claimed asking that if the mother moves to Texas, the father should be granted primary physical custody. Obviously, this is not a situation where there is a 'win-win' resolution. When weighing everything in the balance, the Court finds that there are more reasons supporting the father having primary custody over the mother, if joint custody is not an option.
"Though [the child] would have a parent in either location, all of her other connections appear to be here. The mother's leaving will create a situation where the child will lose one parent for the bulk of the year. If [the child] stays here, she may lose regular contact with [the] mother, but moving to Texas will mean that [the child] will lose regular contact with her father, and the rest of her family as well. Furthermore, there is the issue of the mother's lifestyle influence on the child. The mother admits some of her activities are not appropriate for her child to see, but says that she has tried to shield the child from those activities. However, there is evidence that she may have been unsuccessful in doing so. There is also some evidence that she may have misled the Court in regards to keeping these matters private, which raises issues of credibility in regards to other matters as well.
"As [a] matter of equity, it cannot be ignored that the mother chose to enter into this circumstance, not the father, and not the child. This all puts her in a very, very difficult situation of likely having to make a choice between spending time with her husband or her child. But it was reasonably foreseeable at the time that she began to get involved with [her husband] that this would likely be the result. She assumed that risk and proceeded forward. She indicates now
that if she is not allowed to leave this area being primary physical custodian of [the child], that she will likely return. Again, that is a very hard decision to make but the Court will allow her to make it.
"If the mother remains in Texas, the father is expected to work doubly hard to help maintain a positive relationship between the mother and the child. (For example, if it comes down to the child going to bed on time or being 30 minutes late so she can talk with her mom, let her talk with her mother. The Court realizes this can set the whole household off schedule and the mother should be considerate as well.) The father should patiently engage in discussions with the mother about visitation and transportation and all other important child related matters. They are a parenting team. He should treat her as he would like to be treated if the situation were reversed, knowing that if he can't do that, the situation might be reversed. This Order is in part based on the Court trusting the father to help facilitate a good mother-daughter relationship as much as is in his control."
The trial court directed that the mother and the father "shall continue to share joint custody of the child in a manner that is reasonably calculated to provide substantial time with both parents." The judgment provides that, if the mother remains in Texas or "takes residence in excess of 40 miles from the father," she shall pay child support to the father in the amount of $350 per month and shall receive visitation as specified in an exhibit to the judgment. According to the exhibit referenced by the trial court, the father shall have physical custody of the child, subject to the mother's ability to visit with the child via videoconferencing technology at least twice per week and the mother's additional visitation, which shall include the child's spring vacation from school for approximately one week, the child's summer break from school for approximately two months, the child's fall break from school, the child's Christmas break from school every year from December 26 until the last day of the break, the child's entire Christmas break in odd numbered years, the child's short-term breaks from school, weekend visitation one weekend each month, and special visitation times including the child's birthday, Mother's Day, the mother's birthday, and special family events.
The trial court's judgment further states that, if the mother elects to live within 40 miles of the father, she shall share visitation time with the father on a "2 week on, 2 week off" schedule during the school year, subject to holiday and other specified visitation periods as outlined in the Georgia judgment, and neither party was directed to pay child support in that instance. Additionally, the judgment provides:
"If the mother moves her primary residence to within 40 miles of the father, she shall send a notice of her new address and
contact information to the clerk for filing in this case and notify the father of same. Until such time, mother is deemed to live outside of the 40 mile radius."
The trial court entered an order on July 23, 2021, amending the final judgment to specify a beginning date for the mother to begin paying child support. The mother timely filed her notice of appeal to this court on July 30, 2021.
Facts
The mother, who was 27 years old on the date of the trial, testified that, following their divorce, the parties had initially complied with the visitation periods outlined in the Georgia judgment, but, she said, they had later begun exchanging the child on a weekly basis, with alternating weekends. She stated that, when the COVID-19 pandemic began, she and the father began exchanging custody of the child every two weeks. The mother testified that she had been employed in various positions since March 2017 and that she had joined the National Guard on June 28, 2017. According to the mother, she married her current husband on March 20, 2020. She stated that her husband is a corporal in the Army; that she knew when she married him that he would have to move to another station; and that, in June 2020, he received orders notifying him that he would be stationed at Fort Hood. The mother testified that, in mid-March 2021, she lost her job in Alabama and that, around that same time, she was offered a job in Texas; thus, she said, she and her husband relocated to a three-bedroom rental house in Copperas Cove, Texas, on April 11, 2021. She stated that she had communicated with the child via videoconferencing technology every other day since that time, but she expressed concerns that the father had not allowed her to speak privately with the child. According to the mother, she was required to participate in training for the National Guard for two to three weeks during each summer; thus, she requested custody of the child during the school year, noting that, if the trial court awarded custody to her, the child would attend a school located five minutes from their home in Texas.
The mother testified that, during the time the child had been enrolled in school, the child had lived in the Lee County area and that all of the child's extended family lives in Lee County. She stated that the child has a half sister at the father's home and that the child loves her half sister, her father, and the father's wife. According to the mother, the child has other relatives in the Lee County area, including her maternal aunt and her paternal grandmother, great-grandmother, grandfather, and aunt. The mother stated that, after the parties divorced, she had sought the assistance of those family members in Lee County when she needed child care for the child during her work hours. The mother also testified that she had taken the child to visit the father's relatives when they contacted her and requested to see the child; she stated that those relatives did not get to see the child during the father's custodial periods with the child. The mother admitted that she has no relatives in Texas, but, she said, her husband's mother, father, sisters, and brothers, all of whom the child had met on two occasions during holidays, reside approximately an hour and a half from the mother's residence in Texas. The mother testified that she had always allowed the father to have the child whenever he had requested that the child be allowed to attend certain events during his noncustodial periods; she testified, however, that he had not exhibited that same flexibility in return and that she had had to "bargain" and "beg" for additional custodial periods. The mother presented evidence indicating that she had consulted with the father regarding decisions related to the child, including decisions regarding hair styles and color, but that the father had not extended the same courtesy to her with regard to the child. The mother expressed concerns that the father would not be supportive of her family's relationship with the child when the child is with him. She also testified that the father does not have respect for her and that he had not been supportive of her military career. She stated that, if the trial court awarded custody to the father, she would move back to Phenix City, where, she said, she was maintaining an apartment on a month-to-month lease. She admitted, however, that the apartment was unfurnished at the time of the trial.
The mother testified that she had posted on the Internet photographs of herself in which she was scantily clad and the tattoos that she has were depicted, but, she said, the social-media accounts on which those photographs had been posted had been private and had since been deleted. She admitted that she had made multiple posts that included photographs of her wearing lingerie or less and that those photographs were mixed in with photographs of the child. The mother also testified that she had had an account on a Web site called "OnlyFans," that that site contained copies of some of the same photographs that were posted on her social-media accounts, and that she had earned money from that Web site. According to the mother, the child had not seen those photographs, and, she said, she did not want the child to see the photographs at her age. The mother testified that the child had not seen her posing for the photographs, that the child had not been present during her photo shoots, and that the child did not have access to the mother's social-media accounts. The mother admitted, however, that she had seen the child poke her butt out and that, in the months preceding the trial, the child had pulled up her shirt; she stated that she had corrected the child's behavior in both instances. The mother insisted that the child had not witnessed similar behavior from the mother.
The father also testified regarding photographs of the mother that he had observed on social media. He admitted that the photographs on social media do not make her a bad mother or a bad person, but he expressed his concern regarding the impression that those photographs might have on the child. The father and his wife both testified that the mother's social-media account had not been private when they captured the images from that account that were presented to the trial court as exhibits. The father, the father's wife, and the father's mother each testified that they had witnessed the child posing in positions similar to how the mother was positioned in the photographs posted on the mother's social-media account.
The father testified that he lives in Phenix City with his current wife, who he married in November 2018, and their child, the child's half sister. The father testified that he had served in the Marine Corps and that he had suffered a severe injury in 2013. He stated that, as a result of that injury, he is 100% disabled and receives benefits from the Department of Veterans Affairs in the amount of $3, 537 each month, which amount, he said, was his sole source of income at the time of the trial. He testified that he had previously been employed as a marketing manager but that that employment had ended as a result of the onset of the COVID-19 pandemic. According to the father, he had received unemployment-compensation benefits for a five-month period in 2020. The father also testified that he had plans to launch a landscaping business. He stated that he and his wife had agreed that only one of them would be employed so the other could care for the children. The father testified that his wife had accepted a temporary administrative role at Auburn University the week before the trial.
The father testified that the parties are both good parents, that the custodial arrangement that they had operated under before the mother moved to Texas had worked well, that the child enjoyed having equal time with him and the mother, and that, if the mother relocated back to Lee County, he would like for the same custodial arrangement to continue. He stated, however, that, if the mother remained in Texas, he would like for the mother to have visitation during the summer and other extended breaks from school. The father stated that what would be best for the child would be being able to see her entire family and that that would not happen if she was living in Texas. According to the father, the child loves his wife, the child's half sister, and the child's extended family in Lee County, whom, he said, she visits at least weekly. He testified that the child is well settled in her school and that he planned for her to continue to attend that same school, where, he said, she had performed well. The father testified that he objected to the child's moving to Texas because it would remove her from everything and everyone that she knows. He testified that his wife is a positive adult figure in the child's life and that she respects that decisions for the child are to be made between him and the mother. The father testified that, if the child remained in Lee County, he would continue to facilitate and encourage the child's contact with the mother. He testified also that he believed that, if the child moved to Texas with the mother, the mother would continue to foster the child's relationship with him and his family.
The father's wife testified that she had known the child since the child was under two years old, that she and the child are close, and that the child enjoys spending time with her, the father, and the child's half sister as a family unit. According to the father's wife, the child adores her half sister, whom she calls her "little best friend," and the child always wants to hold and play with her. She testified that the father is very attentive to the children and that it would not be good for the child to be taken away from her whole family.
The father's mother testified that she and the child are close, that they see each other at least once a week, and that she had watched the child for the mother in the past. She stated that the father is a good father, that he loves the child, and that he spends time and interacts with the child. According to the father's mother, the child benefits from living near her and her other family members and they are all involved in the child's life; she testified that it would not be in the child's best interests to not have that time with her family. The father's mother also testified that the mother is a good mother and that the mother loves the child.
The mother's former foster parent testified that the mother had lived with her for 2 years beginning when the mother was 16 years old and that she and the mother had maintained a relationship. She testified that the mother is a wonderful mother and that the mother's husband "is a wonderful guy."
Standard of Review
"Where, as in the present case, there is a prior judgment awarding joint physical custody,' "the best interests of the child"' standard applies in any subsequent custody-modification proceeding. Ex parte Johnson, 673 So.2d 410, 413 (Ala. 1994) (quoting Ex parte Couch, 521 So.2d 987, 989 (Ala. 1988)). To justify a modification of a preexisting
judgment awarding custody, the petitioner must demonstrate that there has been a material change of circumstances since that judgment was entered and that' "it [is] in the [child's] best interests that the [judgment] be modified"' in the manner requested. Nave v. Nave, 942 So.2d 372, 376 (Ala. Civ. App. 2005) (quoting Means v. Means, 512 So.2d 1386, 1388 (Ala. Civ. App. 1987)).
"Also, we note the presumption of correctness accorded to a trial court's judgment:
" 'When this Court reviews a trial court's child-custody determination that was based upon evidence presented ore tenus, we presume the trial court's decision is correct:" 'A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....'" Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993) (citations omitted). This presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. "In child custody cases especially, the perception of an attentive trial judge is of great importance." Williams v. Williams, 402 So.2d 1029, 1032 (Ala. Civ. App. 1981).'"Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001)." Ex parte Blackstock, 47 So.3d 801, 804-05 (Ala. 2009).
Analysis
The mother first argues on appeal that the trial court's judgment is not supported by the evidence. Although the mother did not file a postjudgment motion in the present case, the trial court made findings of fact in support of its judgment such that this court may nevertheless consider the mother's challenge to the sufficiency of the evidence in support of those findings. See Rule 52, Ala. R. Civ. P., and New Props., L.L.C. v. Stewart, 905 So.2d 797, 800 (Ala. 2004).
The father argues in his brief on appeal that the trial court did not modify the custodial disposition but, rather, continued the parties' joint-legal-and-physical-custody arrangement. We disagree. At the time of the entry of the judgment, the mother was residing in Texas. The judgment provides that, unless and until she returns to residing within 40 miles of the father's residence, the father shall have custody of the child during the school year, subject to the mother's right to visitation with the child via videoconferencing technology and in-person visitation with the child in the summer months and during school breaks. Because the judgment awards the father custody of the child for a substantially greater proportion of time, the judgment can only be interpreted as awarding the father sole physical custody of the child. See Motley v. Motley, 69 So.3d 210, 218 (Ala. Civ. App. 2011) (holding that judgment that nominally awarded parties joint physical custody of a child, in substance, actually awarded wife sole physical custody when she had been allocated approximately 200 more days of physical custody per year than the husband). Accordingly, we review the trial court's judgment pursuant to the standard outlined above in Blackstock, supra.
The mother first asserts that a material change of circumstances had not occurred such that a modification of custody was warranted. She cites Marsh v. Smith, 37 So.3d 174 (Ala. Civ. App. 2009), Means v. Means, 512 So.2d 1386 (Ala. Civ. App. 1987), and Patchett v. Patchett, 469 So.2d 642 (Ala. Civ. App. 1985), in support of her assertion that her change in residence alone does not amount to a material change of circumstances that will justify a modification of custody. The parties agreed at the trial in the present case that, because the language of the Alabama Parent-Child Relationship Protection Act ("the Act"), § 30-3-160 et seq., Ala. Code 1975, was not included in the Georgia judgment, the
Act is inapplicable to the parties' competing modification claims. See § 30-3-166, Ala. Code 1975.
In Marsh, this court recognized that caselaw predating the Act indicated that" 'a change in a custodial parent's residence [was] a factor to be considered in determining whether a material change of circumstances ha[d] occurred.'" Marsh, 37 So.3d at 178 (quoting Means, 512 So.2d at 1388) (emphasis added in Marsh). In Means, this court further stated that "a change in the custodial parent's residence alone does not necessarily justify a change in custody." Means, 512 So.2d at 1388.
We note that in none of the cases cited by the mother was the change of residence at issue as significant as the mother's move in the present case to Texas, which the parties agreed was approximately a 14hour drive from Lee County. The distance between the parties' residences necessarily precludes the parties from exercising the custodial periods outlined in the Georgia judgment and from exercising the exchange of the child every two weeks as the parties had done before the mother filed her modification petition. Regardless of whether the child's custody was awarded to the mother or the father, she would be deprived of the continued availability of the other parent. We find that, under these circumstances, the trial court did not err in finding that a material change of circumstances had occurred requiring modification of the child-custody provision of the Georgia judgment.
The evidence further supports a finding that awarding custody of the child to the father would be in the child's best interests. The trial court could have determined that the child would experience the least disruption in her familial relationships, friendships, and educational and community life by leaving the child in the custody of the father for the majority of the time rather than allowing the child to live with the mother in Texas. Additionally, the trial court considered evidence presented by both the mother and the father suggesting that the child had exhibited behavior that required correcting and that that behavior could have resulted from the mother's online activities. Although the mother expressed concerns that the father would fail to foster her relationship with the child if he was awarded sole physical custody, the trial court expressed its concerns regarding the mother's credibility; thus, it was within the trial court's discretion to believe the father's testimony that he would encourage the child's relationship with the mother. We conclude, therefore, that sufficient evidence supports the trial court's judgment awarding sole physical custody of the child to the father.
The mother also argues on appeal that the trial court erred by including an automatic reversionary clause awarding the parties joint physical custody of the child, with neither party to pay child support, in the event the mother relocates to Lee County. Assuming, without deciding, that the mother has standing to challenge that portion of the trial court's judgment, which appears to inure to her benefit, see, e.g., Ex parte Alabama Rivers Alliance, 165 So.3d 597 (Ala. 2014) (concluding that the prevailing party lacked standing to appeal), we note that that portion of the trial court's judgment purporting to automatically modify the child's custody and the parties' child-support obligations based on the potential occurrence of a future event, i.e., the mother's relocating to within 40 miles of the father's residence, is of no effect. See Hovater v. Hovater, 577 So.2d 461, 463 (Ala. Civ. App. 1990) (concluding that the custodial reversionary clause at issue in that case was "of no effect because it [was] premised on a mere speculation of what the best interests of the children may be at a future date"); Daugherty v. Daugherty, 993 So.2d 8, 13 (Ala. Civ. App. 2008) (holding that automatic reversionary provision in divorce judgment was of no effect); and Cleveland v. Cleveland, 18 So.3d 950, 952 (Ala. Civ. App. 2009) (indicating that, when it is clear which custodial arrangement would serve the best interests of the child, this court may hold an automatic modification clause void). Hence, we find no need to reverse the judgment to correct that error.
Because the trial court's judgment is supported by the evidence presented, that judgment is affirmed.
AFFIRMED.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.