Treadway v. Treadway

• Decision Date: 19 June 2020
• Docket Number: 2190133
• Parties: Johnny K. Treadway v. Wendy Michelle Treadway
• Court: Alabama Court of Civil Appeals

Johnny K. Treadway
v.
Wendy Michelle Treadway

2190133

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2019-2020
June 19, 2020

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Lawrence Circuit Court
(DR-15-900035)

THOMPSON, Presiding Judge.

Johnny K. Treadway ("the husband") appeals from a judgment of the Lawrence Circuit Court ("the trial court") divorcing him from Wendy Michelle Treadway ("the wife"). The wife was awarded sole physical custody of the parties' two

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children ("the children") subject to the husband's visitation. The children were 11 years old and 6 years old at the time of the trial. The husband was ordered to pay child support. The trial court also divided the marital property. Neither party received an award of periodic alimony.

The record in this case indicates the following. The parties married on August 26, 2006. At the time of the trial, the husband was 53 years old and the wife was 37 years old. Despite having left high school during his senior year, the husband had owned a successful automotive-repair business ("the collision center") for approximately ten years at the time the parties married. During the marriage, the husband expanded his business to include a tire shop.

The wife, who was working as a nurse at the time the parties married, earned a master's degree during the marriage. After the birth of the younger child, the wife began working part time. At the time of the divorce trial, the wife was working full time at a dialysis center. The parties' marriage was the first for the wife and the fifth for the husband. The wife testified that when the parties married she was aware

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that the husband had been married before, but she had not known their marriage was the husband's fifth.

In 2010, before the birth of the parties' younger child, the wife sought a divorce from the husband ("the previous divorce action"). The previous divorce action was contentious, with each party being arrested at the request of the other during the litigation of that matter. The wife testified that the parties were separated for approximately a year and a half before they reconciled. The trial was already underway in the previous divorce action when the husband told the wife that they should reconcile for the good of the older child. In May 2011, the husband had the wife sign a postnuptial agreement, the previous divorce action was dismissed, and the parties resumed living together in the marital residence. The circumstances surrounding the execution of the postnuptial agreement are discussed in more detail later in this opinion.

The husband filed the current divorce action on April 2, 2015. On May 5, 2015, the wife answered and filed a counterclaim for a divorce. The parties each sought custody of the children. At a May 15, 2015, status conference, the

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parties agreed to maintain the status quo, i.e., both would remain in the marital residence with the children pending the trial. However, on August 20, 2015, the wife filed a motion for pendente lite relief, asserting that the husband's behavior was becoming erratic, that she felt threatened by him, and that the living arrangement to which they had agreed was no longer appropriate. On August 25, 2015, the husband filed a motion in which he, too, sought a change in the status quo living arrangement. The record does not indicate that the trial court ruled on the parties' requests for pendente lite relief. However, it is clear that, during the litigation of the current divorce action, the wife moved from the marital residence in Moulton, which the husband had purchased before the marriage, to Decatur. The wife said that she lived an approximate 17 minutes' drive from the marital residence, where the husband continued to live. The parties continued to share joint legal and physical custody of the children after the wife's move, however. It appears that the children spent alternating weeks with each parent. They continued to go to school in Moulton, even though the wife lived in the Decatur City Schools' district. The wife testified that the schools

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in Decatur were better than the schools in Moulton and that she would like for the children to enroll in the Decatur schools.

The evidence was undisputed that both parties loved and cared for the children. Each party claimed that he or she had been the children's primary caregiver during the marriage. The children's teachers testified that both children were doing well in school, both academically and socially. The children participated in extracurricular activities, and the older child, especially, was active in sports. The husband said that he coached the children's sports teams, went camping and swimming with them, and stressed to them the importance of obtaining a college education. The wife testified that she helped the children with their homework, took the children to almost all of their doctors' appointments, and took the children to church each week. She acknowledged that the husband, who did not often attend church himself, did not prevent the children from going to church. The wife testified that, during the weeks the children were in his custody, the husband took the children to their Wednesday evening church programs. The wife was the room mother for the children's

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classes and attended field trips with them. The husband provided money to the children's classes for the purchase of supplies for the entire class.

The husband testified that he believed the joint-physical-custody arrangement that had been in place for at least two years was in the best interests of the children. The wife sought sole physical custody of the children. She explained that the younger child had been diagnosed with hydronephrosis, a kidney condition that causes the child pain. On one occasion, the wife testified, the school nurse contacted the parties because the child was experiencing significant pain while at school. The wife said that the school nurse recommended that the child see a doctor. However, the wife said, the husband took the child home and put him in a hot bath. The husband testified that the child has kidney stones and that hot baths help. The wife testified that the child does not have kidney stones.

The younger child testified in camera that he would prefer to live with the wife, saying that she took better care of him. The older child, who also testified in camera, said that he liked the "fifty-fifty" arrangement. The older child

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also testified that the parties did not communicate and that he conveyed messages between them.

The parties' relationship continued to deteriorate after they separated. During the litigation of this action, the wife obtained a protection-from-abuse order ("the PFA order") pursuant to which she and the husband were to have no contact. The husband was arrested twice for violating the PFA order. The husband testified that, in his opinion, neither arrest was justified. He explained that one of the arrests came after he had noticed one of the children sitting at the baseball field with the wife. The husband said that the sun was in the child's eyes, so he went to his automobile for a baseball cap and took the cap to the child. He said that the wife had him arrested for coming too close. The second arrest, he said, came after he mailed the wife a letter regarding child support. The wife testified that both instances were violations of the PFA order and that she had summoned the police both times. The wife admitted that she and the husband had not had contact of any kind for at least two years by the time of the trial.

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The wife testified that the husband had been emotionally abusive toward her during the marriage. She said that the husband belittled her education. She also said that the husband would "ground" her, taking her car keys and cell phone from her until she "learned how to act." The parties maintained separate bank accounts, and the husband would not allow the wife to know the parties' financial condition. He also threatened her, saying that she would die before he did and that she "would pay" if she did not concede to his wishes in the divorce action. The husband acknowledged that he had put tracking devices on the wife's vehicles both during the marriage and after the parties separated. He said that he had a right to know where his children were.

The wife also testified that the husband had been physically abusive toward her. She said that he had forced her to have sex on one occasion, that he had hit her across the legs with a crepe myrtle switch, and that he had spit on her. The husband denied such conduct. The wife testified that she would wake up at night to find the husband standing over her. She felt threatened by his actions, she said, and moved out of the marital bedroom. The wife also submitted evidence

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of the husband's prior abuse against previous wives or other women. The husband acknowledged that he had been arrested for assault and harassment "maybe three to four times" in connection with his conduct involving other women.

As to the parties' income and assets, the wife testified that she earned an annual salary of $75,000. The husband testified that the collision center and the tire shop were not doing as well as they once had. He attributed the downturn to the closure of a paper plant in the area, which meant, he said, that people had less money to spend. He testified that, the year before the trial in the current divorce action, he had earned less than he ever had and reported his monthly income at the time of the trial to be $2,961.55. The wife testified that she...