Henderson v. Henderson

• Decision Date: 27 July 2007
• Docket Number: 2060132.
• Citation: 978 So.2d 36
• Parties: Dana Truxillo HENDERSON v. Damon Michael HENDERSON.
• Court: Alabama Court of Civil Appeals

978 So.2d 36

Dana Truxillo HENDERSON v. Damon Michael HENDERSON.

2060132.

Court of Civil Appeals of Alabama.

July 27, 2007.

Thomas R. Boller, Mobile, for appellant.

Bayless E. Biles and Robert W. Waller, Jr., of Wilkins, Bankester, Biles & Wynne, P.A., Bay Minette, for appellee.

PITTMAN, Judge.

Dana Truxillo Henderson ("the mother") appeals from a judgment of the Baldwin Circuit Court granting the petition of Damon Michael Henderson ("the father") to prohibit her relocation to Kodiak, Alaska, with the parties' two minor children, twin daughters ("the children") born of the parties' marriage on July 15, 1998.

In October 23, 2003, a judgment was rendered divorcing the father and the mother and awarding the parties joint legal custody of the children, with the mother having sole physical custody. The father and the mother then married other people. Ronnie Jester, the mother's current husband and an active servicemember in the United States Coast Guard, received orders from his superiors in the Coast Guard requiring him to relocate to Kodiak, Alaska. The mother informed the father that she planned to relocate to Alaska with the children and Jester. The father filed a petition in the trial court seeking to prohibit that relocation and seeking custody; the mother filed an answer. The trial court held a hearing on the matter, during which it heard ore tenus evidence.

The evidence adduced at that hearing indicated that the father, his current wife, and the children's paternal grandparents had been very involved in the children's lives and that they would not be able to maintain that same level of involvement if the mother were allowed to relocate to Alaska with the children. The father testified that he had visited the children, on average, between 25 and 26 days each month and had paid more money in child support than the amount required by the divorce judgment. The father testified that he had regularly driven the children to the paternal grandmother's house before school to eat breakfast, had driven them to school after breakfast, and had picked them up after school. The father stated that he had been very involved in the children's education, had worked with their teachers, and had taken the children to various after-school activities (including dance classes and gymnastics classes). The father and his current wife had also taken them on numerous vacations, e.g., trips to the Disney World amusement park in Florida, to beaches, and to ski destinations. The paternal grandfather testified that he and the paternal grandmother have also had a special relationship with the children, that they had been involved in the children's lives since their birth, and that he did not feel that it was in the children's best interests to move to Alaska. The mother agreed that the father and the paternal grandparents were wonderful people and had "spent a lot of time" with the children.

The mother admitted that if she were allowed to move to Alaska — a move more than 4,800 miles away from the father and paternal grandparents — it would be impossible for the father and the paternal grandparents to maintain the same level of involvement with the children or to exercise weekend visitation with them. Evidence further indicated that it would take approximately 24 hours to travel one way by airplane from Kodiak, Alaska, to Baldwin County, Alabama, and that airfare would be approximately $1,000 per person. Additionally, the mother testified that she would remain in Alabama if the court did not allow her to relocate to Alaska with the children. Jester testified that if the children were allowed to relocate with him and the mother to Alaska, they would live on a Coast Guard base where the mother would not be required to work and could stay at home with the children.

At the conclusion of the testimony, the trial court stated:

"Considering the closeness of the ties here in Alabama and the newness of ties that would take these girls to Alaska, I am going to require that the [children] remain here. Since [the mother] is amenable to being here with the girls, then I will deny the petition to change custody so that [the mother] and [the children] may remain together."

The trial court entered a judgment granting the father's petition to prohibit the mother's relocation to Alaska with the children, but denying the father's petition seeking custody. The mother filed a motion to alter, amend, or vacate the judgment; the trial court denied that motion. The mother timely appealed to this court.

The mother first contends that the trial court erred in applying the Alabama Parent-Child Relationship Protection Act ("the Act"), § 30-3-160 et seq., Ala.Code 1975, because, she claims, the exception to the application of the Act for a person on active military service also applies to her since her current husband has been transferred to Alaska pursuant to an involuntary military order.¹

Our standard of review is well settled. A trial court's judgment based on ore tenus evidence will be presumed correct and will not be reversed on appeal absent a showing that the trial court acted outside its discretion or that the judgment is unsupported by the evidence so as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App. 1995). However, when an appellate court is presented with an issue of law, we review the judgment of the trial court as to that issue de novo. Ex parte Perkins, 646 So.2d 46 (Ala.1994).

To support her contentions, the mother relies on § 30-3-162(a), Ala.Code 1975, a portion of the Act, which states:

"Except as provided in subsection (c) of Section 30-3-165, this article shall not apply to a person who is on active military service in the Armed Forces of the United States of America and is being transferred or relocated pursuant to a non-voluntary order from the government."

The applicable rules of statutory construction are clear:

"`The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.'"

Ex parte Master Boat Builders, Inc., 779 So.2d 192, 196 (Ala.2000) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). See also Kimberly-Clark Corp. v. Eagerton, 445 So.2d 566 (Ala.Civ.App.1983).

Had the legislature intended to include within the scope of § 30-3-162(a) both a person who is on active duty in the armed forces and that person's spouse, it would have been simple for the legislature to do so. Instead, the legislature stated that the exception to the Act shall apply only to "a person who is on active military service in the Armed Forces of the United States of America and is being transferred or relocated pursuant to a non-voluntary order from the government." The use of the phrase "a person who is on active military service in the Armed Forces" in the Act indicates that the legislature intended for the exception to apply only to the person serving in the Armed Forces. In addition, the Act further requires (by using the conjunction "and") that the "person" must be "transferred or relocated pursuant to a non-voluntary order from the government." The mother has not herself been required to relocate pursuant to a nonvoluntary order from the government; that relocation order only applied to Jester. In fact, the mother testified that if the court did not allow her to relocate with the children, then she would remain in Alabama, which demonstrates that, unlike Jester, the mother can choose to remain in Alabama. Therefore, we conclude that the mother's argument is without merit.

The mother also contends that even if the Act applies to her, the trial court acted outside its discretion by not permitting her to relocate the children to Alaska without first considering the factors set out in § 30-3-169.3, Ala.Code 1975.

Section 30-3-169.3, Ala.Code 1975, entitled "Change of custody," states, in pertinent part:

"(a) Upon the entry of a temporary order or upon final judgment permitting the change of principal residence of a child, a court may consider a proposed change of principal residence of a child as a factor to support a change of custody of the child. In determining whether a proposed or actual change of principal residence...