Marshall v. Marshall
| Decision Date | 30 July 2021 |
| Docket Number | 2200187 |
| Citation | 346 So.3d 1008 |
| Parties | Donald Craig MARSHALL v. Taryn Carnes MARSHALL |
| Court | Alabama Court of Civil Appeals |
Charles H. Dunn of Boyd, Fernambucq & Dunn, P.C., Birmingham, for appellant.
Jonathan L. Adams, Talladega, for appellee.
Donald Craig Marshall ("the father") appeals from a judgment of the Talladega Circuit Court ("the trial court") permitting Taryn Carnes Marshall ("the mother") to move with the parties' two children ("the children") from Talladega County to Orange Beach. Because of the move, the trial court modified the father's visitation schedule. In its judgment, the trial court also denied the father's requests to modify custody, to terminate his alimony obligation, to award him attorney's fees, and to hold the mother in contempt for a number of reasons. We affirm in part and reverse in part.
The trial court divorced the mother and the father in May 2017. In the divorce judgment, the trial court incorporated an agreement of the parties pursuant to which the mother and the father were awarded joint legal custody of the children and the mother was awarded sole physical custody subject to the father's visitation. At the time of the trial in this action, the children were twelve years old and fourteen years old. In June 2018, the father filed a petition to modify custody, alleging that the mother "continues to make unflattering and derogatory remarks to the children"; that he had remarried and now had the ability to care for the children full- time; that the children were falling behind in their schoolwork and the mother refused to enroll them in public school; and that the mother refused to tell the father whether she had remarried or was living with a man.
In the same petition, the father moved to have the mother held in contempt because, he said, she had failed to allow him visitation with the children pursuant to the terms set forth in the divorce judgment; she had refused to provide him with updates on the children's medical care and schooling; and she had prevented him from obtaining certain items of personal property that he had been awarded in the divorce judgment. The father later amended the petition to include a request that the trial court enter a "co-parenting plan" designating the parent who is to have the primary authority over decisions regarding the children's academic, religious, civic, cultural, athletic, and other activities. The father, who is a physician, claimed that he was better suited to make decisions regarding the children's academic, athletic, medical, and dental needs.
On July 2, 2018, the mother filed a counterclaim alleging that the father had failed to pay half of the medical bills incurred by the children, as he was required to do pursuant to the divorce judgment, and that he had "willfully interfered with the medical treatment" of the parties' younger child by preventing that child from receiving a scheduled medical procedure. Both parties later amended their pleadings, each requesting a modification of the child support awarded to the mother in the divorce judgment.
During the course of the litigation, the mother notified the father of her intent to move with the children to Fairhope. That notice is not contained in the record. On November 12, 2018, as part of this action, the father filed an objection to the mother's proposed relocation. A week later, the father filed a motion seeking to have a guardian ad litem appointed for the children. In the motion, the father said that he was concerned because, among other things, the mother had wanted to have the younger child undergo a medical procedure that would have required anesthesia and the older child was showing "concerning behaviors and voic[ing] issues regarding suicide." Based upon an agreement of the parties, on November 27, 2018, the trial court entered an order appointing Trina Hammonds as the children's guardian ad litem.
On December 14, 2018, after a hearing on the issue of the children's proposed relocation, the trial court entered an order denying "at this time" the mother's request to relocate with the children.1
On June 5, 2020, the mother filed a second notice of intent to relocate, this time to Orange Beach. In that notice, the mother expressed her belief that the trial court's denial of her previous request to move to Fairhope "was predicated on court's being able to resolve the issues" between the parties but that the issue of relocation had not yet been heard on the merits. The father again objected to the mother's proposed relocation. On July 24, 2020, the trial court held a trial on the parties' various petitions and on the mother's request to move to Orange Beach.
The testimony elicited during the trial was often disputed, and the parties, who were the only witnesses to testify, tended to characterize events in different lights. The evidence demonstrates that the parties have a contentious relationship. The mother, especially, makes little effort to communicate with the father and has told him to contact her through her attorney. The father testified that the mother does not keep him apprised of the children's doctors' appointments and school activities or of other events in their lives. During his testimony, the father's primary concern appeared to be what he described as the mother's inability to coparent with him. For example, the father said, the mother had moved from the former marital residence without notifying him and without providing him with an address where he could reach the children.
In the divorce judgment, the mother had been awarded "the marital residence," which was a double-wide mobile home in need of repair. She also was responsible for the outstanding debt in the amount of $67,000 associated with the mobile home. The mobile home was on a parcel of property where the father apparently had been building a log cabin when the parties divorced. It was undisputed that the cabin had not been completed and that no one was living there. In addition to the unfinished cabin, the property held a number of outbuildings, such as storage sheds and a "guinea house." The father testified that, at the time of the divorce, he had agreed that the mother should be awarded the former marital residence so that the divorce did not "disrupt" the children's lives.
As Hammonds, the guardian ad litem, reported, the former marital residence was in a secluded area. After receiving the guardian ad litem's report, which recommended that the children live in a neighborhood or community, the mother and the children began staying in a house owned by the father of one of the younger child's friends. The mother acknowledged that she had been in a romantic relationship with that man years earlier, although the record did not indicate how many years earlier, but she denied that the two had been in a relationship when she lived in the house or at the time of the trial. The mother said that she had not notified the father that they were living there because it was a temporary arrangement. In fact, the mother and the children stayed in that house for only three weeks before moving into a rental house in Oxford. The mother testified that the original lease she had for the house in Oxford had expired and that, at the time of the trial, she had a month-to-month lease.
When the parties divorced, the mother was homeschooling the children. She testified that she had enrolled them in Faith Christian Academy, a private school, for the 2019-2020 school year. She said that she had been motivated to do so at least in part by the allegation in the father's petition that she had refused to enroll them in public school. The father testified that he had learned that the children had been enrolled in the school from the children themselves. He said that he had not been part of the decision-making process regarding where the children would attend school and was not helping to pay their tuition. The mother acknowledged that she had made the decision without seeking any input from the father and that she had paid the $11,000 annual tuition herself. The mother testified that, if she were permitted to move with the children, they would attend Orange Beach public schools.
The father, who was forty-six years old at the time of the trial, remarried shortly after the parties divorced. He has two children ("the siblings") with his new wife, who was twenty-three years old at the time of the trial. The father testified that they lived in a house in a neighborhood in Gadsden. He had changed jobs and worked in Morgan County, meaning he had a commute of about three hours each day he worked. He testified that he would like to have custody of the children every other week and that his wife was willing to take the children to and from school on the days he is at work.
The father said that the children had a "wonderful relationship" with his wife and the siblings. When the children are at his house, the father said, they play with the siblings "nonstop" and tell the father how much they love the siblings. The father described the children's relationship with his new family as being "positive." He said that he objected to the proposed move to Orange Beach because he believed that the children needed continuing stability and continuity with him, his wife, the siblings, their school, and their...
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