Released for Publication January 20, 2015.
Appeal from Lee Circuit Court (DR-05-522.02), Michael Fellows, Trial Judge.
THOMAS, Judge. Pittman, Moore, and Donaldson, JJ., concur. Thompson, P.J., concurs in the result, without a writing. Thompson, P.J., and Pittman and Donaldson, JJ., concur. Moore, J., concurs in the result, without a writing.
Autumn Holt Irions (" the mother" ) appeals from a judgment of the Lee Circuit Court (" the trial court" ) in favor of Matthew Holt (" the father" ). This is the second time the parties have been before this court. See Holt v. Holt (No. 2060172, July 2, 2007), 13 So.3d 454 (Ala.Civ.App. 2007)(table). The parties were divorced in July 2006; there were two children born of the marriage. At the time of the trial in the present case the parties' daughter and son (hereinafter referred to collectively as " the children" ) were ages 13 and 9, respectively. The divorce judgment awarded the parties joint legal custody of the children, awarded the father sole physical custody, awarded the mother standard visitation, and ordered the mother to pay child support. In November 2006, the mother appealed the divorce judgment to this court; that appeal was assigned case number 2060172. This court affirmed the divorce judgment, without an opinion. The certificate of judgment was issued on August 10, 2007.
The record indicates that a judgment modifying the divorce judgment (" the modified judgment" ) was entered in August 2012 and that the modified judgment awarded the mother additional visitation and increased the amount of her child-support obligation from $351.90 per month to $500 per month. Although the modified judgment has not been included in the record, it appears that the father was ordered in that judgment to maintain health insurance for the children.
This action was initiated on December 13, 2012, when the mother filed a petition for contempt and for further modification of the divorce judgment. In the petition, the mother alleged that the father had allowed the children's health-insurance coverage to lapse and requested that, because she had obtained health insurance for the children, her monthly child-support obligation be recalculated. The mother filed an amended petition on January 16, 2013, in which she stated that the father had notified her via electronic mail that he had entered active military service and had, or was soon to be, relocated to New
York and, further, that he intended to relocate the children to New York. The mother requested that the trial court grant her temporary custody pending a hearing, after which, she requested, she be awarded sole physical custody of the children.
The father filed an answer and a counterclaim on January 22, 2013. In his answer, the father asserted that the children's health insurance had lapsed when he was laid off from his job on September 18, 2012, but that it had been reinstated as soon as he became employed by the United States Army in December 2012; therefore, he contended, there was no reason to grant the mother's request to recalculate her child-support obligation. In his counterclaim, the father requested an upward modification of child support. The father filed another answer on April 12, 2013, denying the allegations in the mother's amended petition.
A hearing was held on April 12, 2013. Because the father had moved to New York, he appeared at the hearing via telephone; the father's attorney personally appeared at the hearing. The trial court entered an order on April 17, 2013, in which it stated that custody and visitation would remain the same and that the children were not to be permanently relocated pending a final hearing. A trial was held on June 25, 2013, at which the trial court received evidence ore tenus. The trial court entered a final judgment on June 27, 2013, which provided, in pertinent part, that the father would retain sole physical custody of the children and that he was permitted to permanently relocate them to New York. The judgment included a visitation schedule and allotted the transportation costs between the parties. The judgment also stated that, " [d]ue to increased visitation expense for the mother, current child support is terminated in deviation from the child support guidelines." The judgment was modified in order to correct typographical errors; the modified judgment was entered on July 1, 2013.
The mother filed a motion to alter, amend, or vacate on July 26, 2013, in which she petitioned the trial court to order the father to notify her within 24 hours of learning that he would be deployed. The father also filed a motion to alter, amend, or vacate on July 26, 2013, in which he requested that the trial court amend the visitation schedule and order the mother to pay child support. The trial court entered an order on August 28, 2013, granting the mother's postjudgment motion and denying the father's postjudgment motion. The mother filed a notice of appeal to this court on October 4, 2013; the father filed a cross-appeal on October 18, 2013.
The mother raises two issues in her brief on appeal: (1) whether the Alabama Parent-Child Relationship Protection Act (" the Act" ), § 30-3-160 et seq., Ala. Code 1975, is applicable to a custodial parent who joins the military after an initial divorce judgment is entered and (2) whether the trial court erred to reversal in finding that a material change in circumstances had occurred but that it did not warrant a change in custody. In his cross-appeal, the father argues that the trial court erred by failing to order the mother to pay any amount of child support, in contravention of Rule 32, Ala. R. Jud. Admin.
We first address the mother's argument regarding the Act. Section 30-3-169.4, Ala. Code 1975, provides:
" In proceedings under this article unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence
of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to ...