Swindle v. Swindle

• Decision Date: 13 August 2010
• Docket Number: 2090139.
• Parties: Mary Yolanda SWINDLEv.Jeffrey Lee SWINDLE.
• Court: Alabama Court of Civil Appeals

55 So.3d 1234

Mary Yolanda SWINDLE

v.Jeffrey Lee SWINDLE.

2090139.

Court of Civil Appeals of Alabama.

Aug. 13, 2010.

Karen D. White–Humphrey, Huntsville, for appellant.D. Milburn Gross, Jr., Meridianville, for appellee.BRYAN, Judge.

Mary Yolanda Swindle (“the former wife”) appeals from a judgment of the Madison Circuit Court that terminated the periodic-alimony obligation of Jeffrey Lee Swindle (“the former husband”) to the former wife, that failed to modify child support, that failed to order the payment of child support and alimony arrearages, and that refused to find the former husband in contempt for failure to pay child support and periodic alimony.

Facts and Procedural History

The parties were divorced by the trial court on February 21, 2008. Pursuant to an agreement reached by the parties that was incorporated into the divorce judgment, the former husband was ordered to pay the former wife $1,600 a month as periodic alimony for a period of 18 months or until the former wife died, remarried, openly cohabitated with a member of the opposite sex, or the former husband retired from the military. The parties had two children: a girl, born in February 1991 (“the older child”), and another girl, born in July 1999 (“the younger child”) (hereinafter collectively referred to as “the children”). The divorce judgment awarded the parties' joint legal custody of the children, and the former wife was awarded physical custody of the younger child and the former husband was awarded physical custody of the older child. The parties were awarded visitation rights with the child that was not in their physical custody. The divorce judgment ordered the former husband to pay $665 a month to the former wife for child support for the younger child; the judgment stated that the award of child support was a deviation from the Rule 32, Ala. R. Jud. Admin., child-support guidelines.

On March 30, 2009, the former husband filed a petition to modify the divorce judgment. In his petition, the former husband alleged that his obligation to pay the former wife periodic alimony should be terminated because the former wife was cohabitating with a member of the opposite sex. The former husband also sought physical custody of the younger child and an award of child support from the former wife. The former husband also filed a separate request for emergency pendente lite relief that alleged that the former wife had “on a regular and frequent basis” begun spending the night with a paramour and leaving the younger child with the former wife's aunt and uncle (“the aunt and the uncle”) for extended periods.

On April 23, 2009, the former wife filed an answer to the former husband's petition to modify the divorce judgment. The former wife also filed a counterclaim and a petition seeking to hold the former husband in contempt. In her counterclaim, the former wife alleged that the older child had moved into her home, and she requested an order awarding her physical custody of the older child. The former wife also alleged that the former husband had not paid the full amount of periodic alimony owed to her in the months of March and April 2009 and that the former husband had used funds from the older child's college fund for his personal use. The former wife sought recalculation of the former husband's child-support obligation for two children, an income-withholding order for the former husband's periodic-alimony obligation, a finding of contempt, and an award of her attorney's fees.

The trial court conducted a pendente lite hearing on May 22, 2009, and the following facts were presented.¹ The former wife testified that she and the younger child lived in the home of the aunt and the uncle, along with two of the aunt and the uncle's children. The aunt and the uncle's home was located in Dora, which, according to the former wife, is approximately 45 minutes outside Birmingham. The former wife testified that she provided money to help pay bills at the aunt and the uncle's home, that she provided food for herself and the younger child, that she received her mail at the aunt and the uncle's home, and that the aunt and the uncle's home was her primary residence. The former wife was employed by the Jefferson County Board of Education as a special-education professional, and she was employed at a school in the Birmingham area.

The former wife testified that she had begun dating a man (“the paramour”) in October 2008. The paramour lived in the Huntsville area. According to the former wife, she began staying with the paramour overnight soon after she began dating him and they had a sexual relationship. The former wife stated that she stayed at the paramour's home when the younger child had visitation with the former husband, who also lived in Huntsville, approximately twice a month. The former wife stated that, on average, she stayed overnight with the paramour four times a month. According to the former wife, she had stayed overnight at the paramour's home on weekdays when school was not in session, but the paramour had never stayed overnight at the aunt and the uncle's home in Dora.

The former husband testified that he, his wife, and his two stepchildren lived in Huntsville and that he was an active-duty officer in the United States Army. The former husband testified that he had exercised visitation with the younger child every first, third, and, when applicable, fifth weekend of each month. The former husband testified that he became aware that the former wife was spending time at the paramour's residence in late 2008 after the former wife requested that he meet her at a gas station across the street from the paramour's residence and he witnessed the former wife drive into the apartment complex where the paramour lived.

The former wife testified that she had occasionally cooked meals at the paramour's home and that the paramour had loaned her a key to his residence, but she denied having a key to the paramour's residence at the time of the pendente lite hearing. The former wife admitted that she had allowed the children to stay overnight at the paramour's residence despite her knowledge that the divorce judgment prohibited her from doing so. The former wife testified that she had been on a vacation with the paramour to Savannah, Georgia, and that she and the paramour had shared a bedroom on that trip. She stated that she left her vehicle at the paramour's residence during that trip and that she and the paramour were gone for approximately three days in March 2009. She denied that she was engaged to the paramour, although she admitted that they had discussed marriage. She testified that she did not receive mail at the paramour's home, that she did not leave any personal items such as toiletries or clothing at the paramour's home, that the paramour had not asked her to move into his home, and that she did not desire to move into the paramour's home. The former wife stated that she had a loving relationship with the paramour and that she cared for him.

Will Posey, an owner of Posey Investigations, testified that the former husband had hired him to conduct surveillance on the paramour's residence. According to Posey, his surveillance team “checked” the paramour's residence approximately 49 times between February 6, 2009, and March 23, 2009, and, according to Posey, the former wife or her vehicle were seen at the paramour's residence 35 times. Posey's video surveillance of the former wife at the paramour's residence revealed that the younger child was with the former wife leaving the paramour's residence on three occasions on a weekday before 7:00 a.m. However, Posey admitted that he did not take video footage of the younger child entering the paramour's residence, and he admitted that the paramour's residence, an apartment, had a separate entrance that was not monitored by his surveillance team. Posey stated that he had confirmed with the former husband that he did not have visitation with the younger child on the days that the younger child was present at the paramour's residence, indicating that it was unlikely that the child was present at the paramour's residence because the former husband had dropped her off at the paramour's residence after exercising visitation with the younger child in Huntsville.

Ryan Gillispie, a private investigator, testified that he had conducted surveillance on the former wife at the paramour's residence. Gillispie stated that he had been to the paramour's residence 13 times between February 8, 2009, and March 9, 2009, and that he saw the former wife at the paramour's home on 12 of those 13 occasions. Gillispie stated that the former wife stayed overnight at the paramour's home on 7 of the 12 occasions that he saw the former wife. Gillispie also stated that he witnessed the former wife using a key to enter the paramour's home when the paramour was not at his home and that he had witnessed the former wife shopping for groceries in Huntsville.

At the conclusion of the pendente lite hearing, the trial-court judge stated: “[A]t this time I am not reasonably satisfied that there has been open cohabitation as that is defined in the statute by [the former wife] and [the paramour]. That doesn't mean that couldn't change at the final hearing, but right now [the periodic-alimony] provision will [remain] unmodified.” The trial court entered a pendente lite order on May 29, 2009, that awarded the former husband primary “care, custody, and control” of the younger child beginning on the younger child's last day of school (May 29), subject to the former wife's visitation rights. The trial court noted that its order provided the former husband with relief that he was already entitled to pursuant to the parties' divorce judgment, which allowed the former husband to have summer visitation with the younger child beginning on the afternoon of the last day of school until the end of the younger child's summer vacation. ² The...