Rigby v. Rigby

• Decision Date: 03 August 2018
• Docket Number: 2170370
• Parties: Regina Moates RIGBY v. Christopher Lee RIGBY
• Court: Alabama Court of Civil Appeals

268 So.3d 76

Regina Moates RIGBY

v.Christopher Lee RIGBY

2170370

Court of Civil Appeals of Alabama.

August 3, 2018

Judy Harrison Barganier, Montgomery, for appellant.

W. Kendrick James, Wetumpka, for appellee.

PER CURIAM.

Regina Moates Rigby ("the mother") appeals from a judgment of the Elmore Circuit Court ("the trial court") that, among other things, divorced her from Christopher Lee Rigby ("the father") and awarded them joint custody of the parties' four children. We affirm.

Background

The parties were married in 1998. Four children were born of their marriage: Tyler, who was born in December 2002; Brianne, who was born in July 2006; and Wyatt and Bailey, twins who were born in October 2009. In February 2016, the mother filed a complaint seeking, in relevant part, a divorce from the father, an award of "primary" physical custody of the children, and an award of child support. The father answered the mother's complaint and counterclaimed seeking, in relevant part, a divorce from the mother, an award of "primary" physical custody of the children, and an award of child support. The parties continued to live in the marital residence during the pendency of the divorce action but had separate bedrooms. The trial court conducted a trial on March 6, 2017. The relevant evidence presented revealed the following.

The mother testified that the father was a registered nurse when they met. She was a respiratory therapist. The mother said that the father later returned to school on two occasions to become a nurse practitioner and a nurse anesthetist, respectively. During cross-examination, the mother stated that she had also obtained a bachelor's degree and a master's degree in business during the marriage. She also testified, however, that she had not been employed in a position requiring those degrees.

The mother said that, during the approximately 30 months it took him to obtain his nurse-anesthetist certification, the father had not worked or provided support for the family. The mother said that the parties had used the proceeds from the sale of a house that she had owned before the parties were married to help meet living expenses during that time. The mother, who had stopped working for a period, started working as a respiratory therapist again after Brianne was born.

After the father obtained his nurse-anesthetist certification in January 2008, he began working in a group practice in Montgomery, where he was still working at the time of the trial. The mother said that she had worked only two days per month from approximately 2008 until early 2016 because Wyatt and Bailey were born prematurely and because "MRSA," which, she said, was "a resistant form of staph," was discovered in her breast. The mother testified that, despite suffering various illnesses and complications with her health, she had continued to provide for the children's care during the marriage. She answered in the affirmative when asked during direct examination whether the parties' marriage had, by agreement, been "sort of ... traditional where the wife is working less, taking more responsibility with the children, [and] the husband [is] working more, paying more expenses ...." She said that the father had preferred that arrangement and had even, at times, expressed his desire for her to stop working altogether. The mother described the father's work schedule before the divorce action was commenced, which involved being on call for substantial periods of time, working long hours, and getting off work at odd hours.

The mother testified that she was planning to return to work after the parties' divorce and expected to earn a gross monthly income of $2,429. She also offered as evidence a list of what she anticipated her monthly expenses would be after the parties were divorced. The monthly expenses totaled $9,645 and included costs for the children and health insurance to cover them.

The mother also testified that the father had earned more than $200,000 in 2016. She said that she was requesting $3,637 per month in child support. If awarded that amount, she said, she wanted $1,000 per month as alimony for a period of five years; she said that she wanted alimony for a longer period of time if she was awarded less child support.

The mother testified regarding the parties' lack of physical intimacy and the self-esteem issues that she had suffered as a result of feeling that the father was not attracted to her. She said that the father had expressed his desire to get divorced in 2014, and she offered documentary evidence demonstrating his communications with other women. She denied that she had had an affair, although she did admit to kissing a man at a restaurant during the pendency of the divorce action.

Extensive evidence was offered regarding the father's viewing of pornography on the Internet in the bedroom that the parties had shared before the divorce action was commenced -- where the children had also sometimes watched television and played. It is undisputed that the father viewed pornography; however, the mother clarified that she was not accusing the father of abusing the children, forcing them to view pornography, or doing anything inappropriate with them. She stated that she was "[a]bsolutely not" accusing him of any sexual activity involving the children. She said that the foregoing evidence simply demonstrated his lack of sound judgment.

The mother testified regarding contact she had made with the Family Sunshine Center in June 2016 to, she said, get "help" with the way that the father treated her because, in her opinion, it "was not right." Specifically, she stated: "I went because my husband had not touched me in 12 years."¹ She said that, although she had protested, the counselor at the Family Sunshine Center had contacted the Department of Human Resources after hearing the mother's complaints regarding, among other things, the father's viewing of pornography. She denied that she had accused the father of anything. She said that nothing had come of the investigation conducted by the Department of Human Resources, which, she said, had involved interviewing the children.

The mother also testified regarding the various medical conditions that affected Wyatt and Bailey. Wyatt, she said, weighed two pounds when he was born and suffered from "a lot of [gastrointestinal] problems, some lung problems from prematurity, [and] some feeding issues." She said that Wyatt had undergone four surgeries but that he was doing well at the time of the trial. The mother testified that Bailey had weighed one pound, seven ounces when she was born. She said that Bailey was cognitively delayed and suffered from vision problems and "sensory issues"; for instance, on one occasion, she said, they discovered that Bailey had apparently removed her own toenails and had given no indication that she was in pain or discomfort. The mother said that Bailey did not begin chewing food until she was more than three years old because she had been fed through a tube as an infant and had therefore not developed the necessary reflexes to eat properly.

At the time of the trial, the mother said, Bailey was doing better but was "by far not to her peers." She said that Bailey was undergoing speech, occupational, and equestrian therapy at the time of the trial and that she was enrolled in a soccer program. She said that Bailey had also participated in gymnastics and swimming, but she said that, around the time that he said he wanted a divorce in August 2014, the father had not agreed to let Bailey continue participating in those activities. The mother said that she did not doubt that the father loved the children, but, she said, he had not participated "at all" in obtaining services for Wyatt's and Bailey's special needs.

The mother testified that she would like the parties to be awarded joint legal custody of the children and that she wanted physical custody of the children. She said that she still wanted the father to be involved in the children's lives and that she believed that maintaining a relationship with him was "[a]bsolutely" critical. The mother testified that she takes care of the children during the week. She said that, during the pendency of the divorce action, she had unsuccessfully attempted to communicate with the father regarding the children. The mother opined that she could provide better stability for the children and that they were her priority.

The mother testified that the father had attempted to care for the children alone for one whole week during the pendency of the divorce action and that Wyatt and Bailey had struggled during that time. Specifically, she said that Wyatt had urinated on himself and Bailey "had had a meltdown in therapy." In addition to the care that she provided the children, the mother said that they came to her if they had an issue with something. The mother said that the father was not patient with Bailey and that he had screamed at her on one occasion during the year before the trial. The mother stated that she participated in the children's field trips and activities and that the father was not involved in those activities. During cross-examination, the mother admitted that the father had provided care for the children occasionally and also stated: "We did a lot of joint decision making"; she disagreed that she "wore the pants in the family."

The mother called the father to testify as an adverse witness. The mother's attorney questioned the father about his work schedule, specifically about the week before the trial as an example. The father testified that he had not seen the children a great deal during that week. He said that he worked an average of 55 hours per week. Regarding his anticipated work schedule following the parties' divorce, however, the father said:

"I make the schedule at our work[,] and I've talked with my bosses ... and I've been given the ability to make whatever type I need that works out for me. So[,] for shared custody, if that were

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