Cochran v. Cochran

• Decision Date: 26 September 2008
• Docket Number: 1061668.
• Citation: 5 So.3d 1220
• Parties: Rachel Sanders COCHRAN v. Gregory Donald COCHRAN.
• Court: Alabama Supreme Court

5 So.3d 1220

Rachel Sanders COCHRAN v. Gregory Donald COCHRAN.

1061668.

Supreme Court of Alabama.

September 26, 2008.

Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham, for appellant.

Judy Harrison Barganier and Jamie Guy Ratliff of Law Offices of Judy H. Barganier, P.C., Montgomery, for appellee.

WOODALL, Justice.

Rachel Sanders Cochran appeals from orders of the Montgomery Circuit Court modifying a previous award of custody of the two minor children of her former marriage with Gregory Donald Cochran. We reverse and remand.

I. Procedural Background

The couple was divorced on February 22, 2001. The marriage produced two children, namely, W.G., born in 1995, and S.S., born in 1998. The judgment of divorce incorporated a settlement agreement executed by the couple, which vested joint legal custody of the children in Mr. Cochran and Mrs. Cochran, with physical custody in Mrs. Cochran. The award of physical custody to Mrs. Cochran was subject to Mr. Cochran's "reasonable visitation" with the children, pursuant to a detailed visitation schedule. Specifically, the children were to be with Mr. Cochran every other weekend from 4:00 p.m. on Friday to 4:00 p.m. on Sunday. They were also to spend "two separate weeks" with him each summer during June, July, or August, the weeks to be designated by mutual agreement. In the absence of an agreement, the judgment provided that Mr. Cochran was to have the children during the "second full week of June and the third full week of July." It also provided that Mr. Cochran would have the children on Father's Day; for spring school holidays during even-numbered years; for Easter during odd-numbered years; for designated hours on Christmas and Thanksgiving; and "any other times mutually agreed upon by the parties." (Emphasis added.)

Paragraph 8(d) of the settlement agreement provided:

"For the month following the month during which the youngest minor child begins first grade (or K-5 if such K-5 program is a full day program) and is no longer in need of childcare services, husband's child support payments shall be reduced by $500.00 of the amount then required to be made as child support."

The judgment gave Mrs. Cochran "final authority" in matters involving the health, education, and welfare of the children.

Mr. Cochran subsequently defaulted on child support and other payments required of him under the divorce judgment. Consequently, Judge Richard H. Dorrough entered arrearage judgments against him in September 2002 and in January 2003, in the amounts of $18,752.60 and $2,142.70, respectively.

Meanwhile, from February 2001 until at least August 2004, Mr. Cochran enjoyed access to the children in addition to the visitation specifically allowed by the settlement agreement. For example, he routinely kept the children for two hours after school every Tuesday and Thursday (hereinafter referred to as "the weekday visits"). By approximately August 2004, however, Mrs. Cochran was no longer consenting to the weekday visits, and, on April 28, 2005, Mr. Cochran filed a "petition for modification of custody or alternatively petition for modification of visitation." The petition sought an order awarding Mr. Cochran primary physical custody or, alternatively, at least one-half the custodial period. The petition also sought a "formal parenting plan" awarding Mr. Cochran the "final decision-making authority with regard to the children's education, emotional, and physical health issues, and extracurricular and sports activities."

On July 13, 2005, pursuant to a joint motion filed by the Cochrans, the trial court appointed Dr. Karl Kirkland as a "parenting coordinator" to assist the Cochrans in "making and implementing decisions ... regarding visitation matters." On August 30, 2005, Mr. Cochran filed a motion to dismiss his petition for modification on the ground that the "best interests of the ... children [would be] served by ... the parties' continuing participation in co-parenting counseling with Dr. Kirkland." The trial court granted that motion.

However, on September 26, 2006, Mr. Cochran filed a second "petition for modification," alleging that there had "been a material change in circumstances since the entry of the previous award of custody and visitation." He sought a reallocation of the "rights and responsibilities between the parties with regard to the parties' minor children to include more of a shared parenting time" and an order giving him "the final decision-making authority with regard to the children's education, emotional, and physical health issues, and extracurricular and sports activities." On February 23, 2007, Mr. Cochran filed a sworn amended petition for modification, seeking an order awarding him "true joint custody of the children and designat[ing him] as having final decision-making authority with regard to the children's medical care, their education, and their sports activities."

On August 16, 2007, after an ore tenus hearing, the trial court entered an order (hereinafter referred to as the "modification order") that, among other things, awarded the parties joint legal and physical custody and gave Mr. Cochran final decision-making authority as to the children's health care, education, and extracurricular activities, based on a finding of a material change in circumstances. The court's rationale related in large part to three matters that, according to Mr. Cochran, amounted to material changes in circumstances since the entry of the divorce judgment. One was that, from November 2004 to approximately November 2006, W.G. had been treated with the antidepressant drug Prozac. Although the treatment had ended by February 23, 2007, when Mr. Cochran filed his amended petition, he asserted that the course of treatment for W.G. evidenced, among other things, bad judgment on Mrs. Cochran's part. Second, he asserted that Mrs. Cochran had undermined his relationship with the children by terminating the weekday visits. Third, Mr. Cochran alleged that, because the children had grown older since the divorce, they needed to spend more time with him.

In the modification order, the trial court stated, in pertinent part:

"[Mr. Cochran] adamantly objected to learning that his older son, W.G., was prescribed Prozac at [Mrs. Cochran's] request. The circumstances of [Mrs. Cochran's] obtaining that prescription for Prozac for this child were murky at best. What was clear was that the child was not taken to a physician prior to the prescription being written. Testimony appeared to indicate that [Mrs. Cochran] simply called the child's doctor and requested a prescription for Prozac to cure W.G.'s behavior problems at school. [Mr. Cochran] objects to the children being placed on medication prior to exhausting other remedies for whatever the behavioral problem may be. He appeared gravely concerned that such action by [Mrs. Cochran] would occur again. [Mr. Cochran] further objects to [Mrs. Cochran's] continued exclusion of him from major decisions about the children. He believes that her decision to unilaterally allow W.G. to take Prozac and to continue that medication after the physician recommended stopping the medication, is not in the child's best interest and does not evidence sound judgment.

"The court believes circumstances have materially changed since the entry of the final decree of divorce such that the two young children would benefit from increased direct paternal guidance at this crucial stage in their lives. For example, the older child, W.G., was suspended for two days from school because he and other children wrote an inappropriate message at school. When W.G. further manifested his reluctance or refusal to comply with behavioral requirements of a child of his age, the result was the prescription for Prozac. There was testimony from several witnesses that both children are frequently belligerent toward [Mrs. Cochran] and that, on occasion, she has called [Mr. Cochran] to assist in controlling the behavior problems. There was testimony that the children had hit [Mrs. Cochran] on occasion and that they speak to her in a disrespectful manner.

"[Mrs. Cochran's] testimony confirmed that she believes that it is within her purview, as the physical custodian for the children, to determine whether or not the children should exercise visitation with their father. At some point after the divorce, the parties agreed that, in addition to scheduled visitation, [Mr. Cochran] would have visitation on Tuesdays and Thursdays each week. However, [Mrs. Cochran] only allowed him to pick up the children at about 4:00 p.m. and to return them to her home between 6:00 p.m. and 6:30 p.m. She unrealistically expected that the children would complete their homework and eat supper during this time. Upon returning the children to her home, [Mr. Cochran] testified that he was often greeted by a baby-sitter waiting to care for them because [Mrs. Cochran] was `out' for the evening.

"On or about August of 2004, [Mrs. Cochran] unilaterally stopped the weekday visitation. [Mr. Cochran] asserts that the cessation of visitation was because he refused to reimburse her for a fence she built at her home. [Mrs. Cochran] asserted that she stopped the visitation because [Mr. Cochran] was unable to fulfill the requirements of a father helping the children with elementary school homework. Given the level of intelligence and post-secondary education of these parties, [Mrs. Cochran's] rationale is nothing more than an attempt to disguise interference with [Mr. Cochran's] visitation and, therefore, his long-term relationship with his children."

In a separate order issued the same day (hereinafter referred to as the "co-parenting order"), the court vested in Dr. Kirkland the ultimate authority to, among other things, "chang[e] education, daycare, and/or extra-curricular activities for the children," and to "determin[e] appropriate medical, mental health and counseling treatment (including...