Ladden v. Ladden

• Decision Date: 16 April 2010
• Docket Number: 2081010.
• Parties: David A. LADDEN v. Judith H. LADDEN.
• Court: Alabama Court of Civil Appeals

49 So.3d 702

David A. LADDEN

v.Judith H. LADDEN.

2081010.

Court of Civil Appeals of Alabama.

April 16, 2010.

Bruce L. Gordon and Jason E. Gilmore of Gordon, Dana, Knight & Gilmore, L.L.C., Birmingham, for appellant.

Charles H. Dunn and G.R. Fernambucq of Boyd, Fernambucq, Vincent & Dunn, P.C., Birmingham, for appellee.

BRYAN, Judge.

David A. Ladden ("the father") appeals from a judgment of the Jefferson Circuit Court ("the trial court") insofar as it denied his petition to change custody of the parties' daughter ("the child"), ordered the father to pay the attorney fees of Judith H. Ladden ("the mother"), and ordered the father to pay a portion of the fees of the child's guardian ad litem.

Procedural History

The parties were divorced by the trial court in a final judgment entered on June 18, 1998. Pursuant to the parties' divorce judgment, the mother was awarded "custody and control" of the child and the father was awarded extensive visitation with the child, including on the first, the third, and, when applicable, the fifth weekend of each month.¹ On April 19, 2000, the trial courtentered an order that modified the divorce judgment by, among other things, removing restrictions in the divorce judgment that prevented the child's residence from being outside Jefferson County and altering the father's visitation schedule so that the father had visitation with the child only on the first and third weekend of each month.² The father's remaining visitation periods, including certain Christian and Jewish holidays, summer visitation, spring-break visitation, birthday visitation, and Father's Day visitation, remained unchanged.

On May 31, 2007, the father filed a petition to modify the divorce judgment, seeking custody of the child. On December 18, 2007, the mother filed a counterpetition for modification of the divorce judgment, seeking an increased award of child support, modification of the visitation rights of the father, and an award of attorneys fees. In September 2008, the trial court granted the mother's request to appoint a guardian ad litem on behalf of the child. On April 13, 2009, the trial court conducted an ore tenus hearing on all pending motions. The trial court entered a final judgment on April 30, 2009, that denied the father's petition to modify custody of the child, reduced the amount of child support payable to the mother, and increased the father's visitation with the child. The guardian ad litem was awarded fees in the amount of $10,000. Both parties had deposited $2,500 toward the guardian ad litem's fees, and the father was ordered to pay the remaining balance of the guardian ad litem's fees, or $5,000. The father was also ordered to pay $25,000 to the mother for her attorney's fee.

The father filed a motion, pursuant to Rule 59, Ala. R. Civ. P., to alter, amend, or vacate the trial court's April 30, 2009, judgment. He argued, among other things, that the trial court had erred by using the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), that the trial court had improperly excluded the testimony of his expert witness, ³ that the trial court had erred in ordering him to pay any portion of the guardian ad litem's fees, and that the trial court had erred in ordering him to pay $25,000 in attorney fees to the mother. On June 15, 2009, the trial court entered an order "amending and extending" the April 30, 2009, judgment. The trial court clarified the father's visitation rights and clarified that the father's obligation to pay $5,000 in guardian ad litem fees was in addition to the $2,500 deposit he (and the mother) had already paid toward the guardian ad litem's fees. The father timely appealed.

Facts

The mother and the child moved from Birmingham, Alabama, to New Orleans, Louisiana, in 1999. The father moved to Oklahoma in 2000, and he moved to Texas in 2003. The father moved to McComb, Mississippi, in 2004 to be closer to the child. The father stated that he could get to New Orleans from his home in McComb in approximately 1 hour and 15 minutes.The parties testified that in 2004 they met with a counselor to reach an agreement about visitation at the direction of a judge in Louisiana.⁴ As a result, the father began exercising additional visitation with the child every Wednesday afternoon and on alternating fifth weekends during the months that had a fifth weekend. The father also attended the child's soccer games in New Orleans even if it was not his weekend for visitation. The mother stated that she had been flexible and liberal with the father's visitation and that she had allowed the father to visit the child over and beyond what the April 2000 judgment had awarded the father. It was undisputed that the father had maintained regular visitation with the child since the parties' divorce regardless of where he was living.

The mother and the child relocated to Birmingham in 2005 after Hurricane Katrina made landfall near New Orleans on Monday, August 29, 2005. The mother's actions on the weekend before Hurricane Katrina made landfall on the Gulf Coast were discussed at length at the final hearing. The mother stated that she left New Orleans on the Friday before the storm made landfall. She drove to Pensacola, Florida, alone, to meet a man that she had become acquainted with on a dating Web site. During that time, the child stayed in New Orleans with the mother's mother ("the maternal grandmother"), who was approximately 70 years old at that time. The maternal grandmother and the child were forced to evacuate New Orleans on Sunday, August 28, the day before Hurricane Katrina made landfall. The mother left Pensacola at approximately 4:00 a.m. on Sunday morning to return to New Orleans, but she was unable to return to the city due to the evacuation. The mother drove to Atlanta, Georgia, and the child and the maternal grandmother met the mother in Atlanta after spending three nights in Mobile, Alabama. The father stated that, despite repeated efforts to communicate with the mother in the days before Hurricane Katrina made landfall, he could not get in touch with the mother, the child, or the maternal grandmother.

The mother testified that her home in New Orleans had not flooded after Hurricane Katrina but that the home had been unlivable because there was no electricity, no plumbing, and no safe drinking water. The mother also stated that the schools were not open in New Orleans following the storm. The mother and the child stayed with the mother's family in Atlanta for a short time, and they eventually returned to Birmingham and stayed with friends. The mother informed the father of her intent to relocate to Birmingham with the child, and the father consented. The mother enrolled the child in school in Birmingham, and the child entered the 5th grade.

According to the father, when the mother informed him of her intent to relocate to Birmingham, the mother agreed to meet the father in Meridian, Mississippi, once a month for visitation exchanges because Meridian was approximately halfway between McComb and Birmingham, which are approximately four and one-half hours apart.⁵ The mother met the father inMeridian for visitation exchanges until January 2007. Apparently, after January 2007, the child usually flew from Birmingham to New Orleans to visit the father, and on a few occasions the father drove to Birmingham to pick up the child for visitation. However, the father was not able to exercise mid-week visitation with the child because of the distance between Birmingham and McComb. The father also testified that, after May 2007, the mother did not allow him to visit the child on alternating fifth weekends of the months that had a fifth weekend.

The mother testified that she had had two short-term romantic relationships since she had returned to Birmingham in 2005. She stated that the men with whom she had had those relationships had never stayed overnight at the home that she shared with the child.⁶ The mother also testified that she had not shared a bedroom with either of her paramours on vacations when the child was present.

At the time of the final hearing, the mother was the Director of Admissions at Highlands Day School in Birmingham and she earned approximately $46,000 a year. The mother stated that she had paid $325,000 for her home in Birmingham in 2005, that she had an outstanding mortgage on her home in the amount of $200,000, and that she had paid cash for renovations on that home in the amount of $300,000. The mother testified that she had approximately $700,000 in various savings and retirement accounts.

The mother married Randy McDonald ("the stepfather") in December 2007. According to the mother, she did not send wedding invitations to anyone and no one was present for the marriage except the mother and the stepfather. The child was visiting the father in McComb on the day the mother remarried, but the record indicates that the child's two older siblings "stopped by" the restaurant where the mother and the stepfather had dinner after their nuptials. The mother testified that she and the stepfather hosted a reception to celebrate their marriage on January 1, 2008, and that the child was present on that occasion.

The mother began dating the stepfather in January 2007, and she testified that he frequently came to her home for dinner. The mother denied that the child, more frequently than not, ate dinner alone in the playroom, which the child apparently used as a bedroom. The child testified that, before the mother married the stepfather, she had frequently heard an alarm clock go off at 5:30 in the morning, that she had then heard footsteps, and that she had then heard an automobile drive away. The child alleged that the mother had told her not to tell the father that the stepfather had stayed overnight, but the mother denied this allegation. The mother stated that, on four or five occasions during their courtship, the stepfather had left her home between...