McGonagle v. McGonagle

Citation218 So.3d 1208
Decision Date20 May 2016
Docket Number2150136.
Parties Heather Maria McGONAGLE v. Robert Allen McGONAGLE.
CourtAlabama Court of Civil Appeals

Alabama Supreme Court 1151103.

Brian A. Dasinger, Fairhope, for appellant.

Patrick B. Collins, Daphne, for appellee.

THOMAS, Judge.

Heather Maria McGonagle ("the mother")1 appeals from a judgment of the Baldwin Circuit Court awarding sole physical custody2 of the parties' child to Robert Allen McGonagle ("the father"). Because we determine that the circuit court lacked subject-matter jurisdiction to enter the judgment, we dismiss the appeal.

Background

The child was born on May 14, 2012. The mother and the father were divorced by a judgment of the circuit court in March 2013. The divorce judgment incorporated an agreement between the parties, in which they agreed that they would share joint legal custody of the child and that the mother would exercise sole physical custody of the child.

In April 2013, the father was deployed to Kyrgyzstan by the United States Air Force. He returned from his deployment in November 2013 and began to live in Fort Walton Beach, Florida. He testified that he lived by himself until March or April 2014, when he began to live with his girlfriend, LeeAnn. He and LeeAnn were married four months later. He continued to live in Fort Walton Beach until November 2014, when he moved to Eglin Air Force Base in Florida. He then moved to Houston, Texas, in June 2015.

The mother testified that she had left the marital residence in approximately August 2012, when she and the father separated, and had begun living with her parents in Foley, Alabama. She testified that, during that period, she and the child at least occasionally "stayed with" Roy Cruise. The location of Cruise's residence is not clearly stated in the record, but it appears that it was located in Alabama. The mother stated that she had been engaged to marry Cruise but that their relationship ended after four or five months. She testified that she and the child had begun living with Henry Centeno sometime "between late spring and summer" of 2013. When asked where Centeno lived, the mother testified: "Destin.... It's in conjunction with Fort Walton." The father testified that Centeno lived in Fort Walton Beach, Florida. The mother stated that she and the child had lived with Centeno for approximately nine months to one year and that she believed that their relationship had ended in late 2013.

The mother further testified that she began a relationship with Edward Arvizu in late January or early February 2014, but the father testified that she told him about her relationship with Arvizu a couple of weeks before he returned from his deployment in November 2013. The mother stated that she and the child had begun living with Arvizu in Crestview, Florida, when they began dating. The mother testified that she had dated Arvizu for approximately one month before they were married in March 2014. In April 2014, Arvizu was deployed to Afghanistan by the United States Army. The mother testified that her relationship with Arvizu had become troubled sometime during May or June 2014. Nevertheless, she and the child continued to stay in the marital residence while Arvizu was deployed. During that time, she and the child at least occasionally stayed with her friend, Jessica, at Jessica's mother's residence. The father testified that Jessica lived in Fort Walton Beach, Florida.

The mother testified that, toward the end of September 2014, she and the child began to live with Centeno again. Although the mother testified that Centeno had purchased a house since their previous separation, there was no evidence indicating that he had moved to Alabama from Florida. Arvizu returned from his deployment in October 2014, and he and the mother were divorced around that time. The mother and Centeno were married in February 2015.

The mother provided the following testimony upon examination by the father's attorney at the hearing:

"Q: All right. And I'm going to try—some of this, I've covered. I'm going to—bear with me for a minute. I'm going to try to get—So you went from Eglin Air Force base with [the father], right?
"A: Yes.
"Q: To Foley, to [Centeno's] in Destin, to [Arvizu's] in Crestview, and back to Foley?
"A: Nope.
"Q: Okay. Didn't—you went straight from [Arvizu's] to [Centeno's]?
"A: Yes.
"Q: And then mixed in there was some staying some time—
"A: I spent a lot of time with Jessica and her family.
"Q: Yes. And with Roy Cruise. You stay there a lot?
"A: Yes, we stayed together—
"Q: Then you stayed with your family some in Foley, I suppose?
"A: Yes, I visit my family quite often. I would say twice a week—or twice a month, I visit my family.
"Q: All right. You know, I believe that you—also in August 2014, which would have been about the time—just shortly before the time that you were struggling with where to go, you also went to Hawaii with another man, didn't you?
"A: That was in 2013.
"Q: That was in 2013?
"A: I believe so.
"Q: Okay.
"A: I can't remember the exact year. But yes, I did fly out to Hawaii with a friend of mine.
"....
"Q: And you stayed with him for how long?
"A: A week."

On November 12, 2014, the father petitioned the circuit court, seeking a modification of the custody arrangement set out in the divorce judgment. Among other things, the father alleged that "a material change in circumstances ha[d] occurred and it [wa]s in the best interest of the minor child that the father have ... sole [physical] custody." He alleged that the mother's lifestyle, specifically her decisions to live in multiple locations and to cohabit with men to whom she was not married, had prevented her from being able to provide a stable environment for the child.

Among other things, the father asked the circuit court to award him "legal and physical custody of the minor child or, in the alternative, that the joint custody continue with the father having [sole] physical custody." The mother answered the father's petition, admitting his allegations regarding the "ages, residences, marital status and children of the parties" and denying the other allegations made in his petition.

After discovery, the circuit court held a hearing on July 24, 2015. On July 28, 2015, the circuit court entered an order concluding that "the [m]other's frequent home changes constitute a material issue of a continuing nature." Among other things, the circuit court awarded the parties joint legal custody and awarded the father sole physical custody. The circuit court also ordered the parties to calculate child support and to submit the necessary forms within 14 days.

In response to the circuit court's order, the mother filed a motion, arguing, among other things, that the circuit court lacked jurisdiction to modify the custody arrangement and stating: "Both of the parties had lived in Florida for more than six months preceding the filing of this action. Therefore, proper jurisdiction should have been the Florida courts." She also argued that there was insufficient evidence to support the circuit court's finding that a material change in circumstances had occurred, and she argued that the father had failed to meet the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984) ("the McLendon standard").

The father responded to the mother's motion and submitted to the circuit court excerpts from the mother's deposition; those excerpts, containing examination by the father's attorney, provide, in pertinent part:

"Q: Have you ever been to Hawaii?
"A: Yes.
"Q: When did you go to Hawaii?
"A: I don't remember the exact time. Maybe August.
"Q: Of '14?
"A: Yes.
"....
"Q: And you went out there, you said, August of '14?
"A: Uh-huh.
"Q: Was that in between living at [Arvizu's] and [Centeno's], or was that while you were at [Centeno's] or [Arvizu's]?
"A: That was before [Centeno].
"Q: Were you still at [Arvizu's] when you went out to Hawaii?
"A: No. That was before [Centeno] and I was together. It was before [Centeno] or [Arvizu] and I lived together.
"Q: Okay. Well, you said you went to Hawaii in August of 2014.
"A: It might have been 2013. I'm not sure. Let me think. Maybe 2014, yeah.
"[The mother's attorney]: 2014 was just six months ago. 2013 would have been a year-and-a-half ago.
"[The mother]: Maybe a year-and-a-half ago then.
"[The mother's attorney]: It would have been while the two of you were separated, but the divorce had not been signed yet.
"[The mother]: No. We were already divorced. So I—
"[The father's attorney]: I would rather get your testimony, really, than your attorney. I want to know what you remember. And that's okay, I understand you're trying to remember.
"A: I'm just trying to remember dates, because they're—I don't remember exactly. I never thought I would have a use for remembering.
"....
"Q: And you were living where at this time?
"A: I believe I was living with my parents."

On September 25, 2015, the circuit court heard arguments on the mother's motion and denied it that same day. The circuit court did not make any specific factual findings in its order denying the mother's motion. On October 6, 2015, the circuit court entered a final judgment, which included an award of child support and in which it again found that the mother had made "frequent home changes" but did not otherwise recite any specific factual findings.3

The mother timely filed a notice of appeal, arguing: (1) that the circuit court did not have jurisdiction to enter its judgment and (2) that the custody arrangement should not have been modified because the McLendon standard was not met. Because we conclude that the circuit court lacked subject-matter jurisdiction to modify the original custody determination, we do not address the mother's second argument.

Standard of Review

Whether the circuit court had subject-matter jurisdiction to modify its prior custody determination is a strictly legal question that is subject to de novo review. Winford v. Winford, 139 So.3d...

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