Hodgins v. Hodgins
| Decision Date | 28 October 2011 |
| Docket Number | 2100022. |
| Citation | 84 So.3d 116 |
| Parties | David Mark HODGINS v. Sarah E. HODGINS. |
| Court | Alabama Court of Civil Appeals |
Kelli F. McDaniel, Montgomery, for appellant.
Judy Harrison Barganier, Montgomery, for appellee.
On Application for Rehearing
The opinion of July 29, 2011, is withdrawn, and the following is substituted therefor.
David Mark Hodgins ("the father") appeals from a judgment entered by the Montgomery Circuit Court ("the trial court") that modified certain aspects of the judgment that divorced the father and Sarah E. Hodgins ("the mother").
The record indicates that the trial court entered a judgment divorcing the parties on November 24, 2008. The divorce judgment incorporated a settlement agreement entered into by the parties that set forth the parties' agreement regarding all issues pending before the trial court, including custody of the one child born during the marriage, a girl born in September 2004. Pursuant to their agreement, the parties were awarded joint legal custody of the child and the father was awarded sole physical custody subject to the mother's visitation rights. The agreement specifically provided:
At the time the divorce judgment was entered, the father, who was in the United States Marine Corps, and the child lived in Beaufort, South Carolina, and the mother lived in Montgomery. Regarding visitation, the agreement provided that the mother was to have visitation with the child, supervised by her parents, once a month, from Tuesday afternoon until the following Sunday afternoon. The mother was responsible for the cost of transportation for her visitation periods, and, for that reason, the parties agreed to deviate from the Rule 32, Ala. R. Jud. Admin., child-support guidelines by setting the mother's child-support obligation at $100 a month.
Finally, pursuant to the agreement incorporated into the divorce judgment, the father was "entitled to request that the [mother] submit to a ten panel hair follicle drug screen no more than once every three (3) months...."
The underlying proceeding from which this appeal was taken was initiated by the mother on April 13, 2009, when she filed a petition to modify custody of the child. The mother also requested, as a form of alternative relief, that she be awarded liberal unsupervised visitation with the child. The father filed an answer asserting that the mother's custody-modification petition was frivolous, and he requested an award of attorney's fees pursuant to the Alabama Litigation Accountability Act, § 12–19–270, Ala.Code 1975. At the mother's request, the trial court subsequently appointed a guardian ad litem on behalf of the child.
In September 2009, the guardian ad litem and the father filed separate motions to suspend the mother's visitation with the child pending the final hearing. As grounds, they asserted that the child had begun a pre-kindergarten program and that visitation with the mother was not in the child's best interest because the child needed to be in school in order to improve her academic performance. The mother objected, and the trial court entered an order that maintained the mother's visitation rights but that ordered the mother to attend one feeding-therapy session with the child in Montgomery and one feeding-therapy session with the child in Beaufort.1
On October 8, 2009, the father filed a counterclaim requesting, among other relief not pertinent to this appeal, that the mother's visitation award be modified in light of the fact that the United States Marine Corps had ordered him to transfer to a military base in California.
The trial court conducted an ore tenus hearing regarding the mother's and the father's petitions to modify the divorce judgment over three days: October 26, 2009, November 24, 2009, and June 22, 2010. On June 25, 2010, the trial court entered an order that denied the mother's custody-modification petition and held that the father remained the sole physical custodian of the child. The trial court further held that the parties remained joint legal custodians of the child, but it modified the divorce judgment insofar as it allowed the father to have final decision-making authority over the child. The judgment stated: "If the parties cannot agree, the [father] shall have final authority over medical and extracurricular matters, and the [mother] shall have final authority over religious and educational matters."
The trial court also modified the mother's visitation with the child so that she was awarded the following unsupervised visitation: four weeks of visitation with the child each summer, the "entirety of every spring break," each Thanksgiving or fall break, one weekend of visitation in California each month, and any other time that the parties mutually agree upon. The parties were ordered to equally share the child's Christmas break.
The trial court further held:
Finally, the trial court ordered that the father no longer had the discretion to request that the mother submit to a drug screen and that the mother and the father were responsible for their own attorneys' fees.
The father filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P., and, after conducting a hearing, the trial court made the following pertinent modification to its judgment:
The father subsequently appealed.
The record indicates that the mother had been indicted on two drug charges before the parties divorced—one misdemeanor and one felony. Since that time, the mother had participated in the pretrial-diversion program through the Montgomery County District Attorney's office. The mother testified that she had taken a drug test at the father's request in October 2008 and that she had voluntarily submitted to a drug test in July 2009; on both occasions, she had not tested positive for any drugs. The mother stated that the last time she had used illegal drugs was before the divorce judgment was entered. At the time of the June 2010 hearing, the mother's charges had been nol prossed.
At the time of the October 2009 hearing, the mother was going to school at Virginia College, studying to be a surgical nurse. Charles Locklin, the child's maternal grandfather ("the maternal grandfather"), testified that the mother had completely changed since the time of the divorce, that she was drug-free, and that she accepted her responsibilities. The mother lived with her parents, and the mother's parents helped financially support the mother while she was in school and working part time.
The mother testified that the father had used the language of the divorce judgment, insofar as it gave him final decision-making authority over decisions concerning the child, to exclude the mother from discussions and decision-making situations regarding the child. Furthermore, according to the mother, all decisions concerning the child were made by the father and, if she objected to the father's decision, her objections were "null and void." The maternal grandfather testified that the father had "closed out" the child from the mother, that the father had the attitude that he was the sole parent of the child, and that the father had the attitude that the mother should not have anything to do with the child.
The record indicates that the mother believed that her objections and concerns regarding the child's medical conditions were not properly presented to the child's doctors by the father, and, according to the mother, the father did not ask her opinion before making medical decisions concerning the child. The mother stated that she learned that the child's g-tube
had been removed after it had already happened and that the father had failed to communicate with her regarding the child's eating habits. The father stated that he did not know that the child's g-tube was going to be removed beforehand and that he always notified the mother before major medical decisions were made. The...
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...that the primary concern in cases involving child custody is determining the best interests of the child. See Hodgins v. Hodgins, 84 So.3d 116, 127–28 (Ala.Civ.App.2011). More than 60 years ago, our supreme court stated that “[i]n all [child-custody] proceedings the question of custody rest......
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