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Beall v. Beall

Alabama Court of Civil Appeals

May 5, 2017

Kendra L. Beall
Christopher Scott Beall

         Appeal from Lee Circuit Court (DR-13-900162.01)

          MOORE, JUDGE.

         Kendra L. Beall ("the mother") appeals from a judgment of the Lee Circuit Court ("the trial court") addressing competing custody-modification petitions filed by the mother and Christopher Scott Beall ("the father") regarding the only child of the parties' marriage ("the child"). We affirm the trial court's judgment.

         Procedural History

         The parties were divorced by a judgment entered by the trial court on September 3, 2013; that judgment incorporated a settlement agreement entered into by the parties ("the settlement agreement"). In the settlement agreement, the parties agreed, among other things, that they would share joint legal and physical custody of the child "[u]ntil the time previous to the child's age of enrollment in a K1 program, " at which time the parties "shall either mutually agree upon [sole] physical custody or shall have the matter resolved in the court of proper jurisdiction."[1] The parties agreed to alternate physical custody of the child on a week-to-week basis; they noted that they understood that either party could move from Lee County and agreed that, if either or both did so move, they would meet halfway between their two residences to exchange the child.

         Sometime around January 2014, the mother moved from Auburn to Greenback, Tennessee, and obtained employment at an architectural firm in Knoxville, Tennessee. Pursuant to the settlement agreement, the parties met in Cartersville, Georgia, a location approximately halfway between Auburn and Greenback, to exchange the child. On December 18, 2014, the mother filed in the trial court a "verified petition for modification, complaint for declaratory judgment, breach of contract, and attorney's fees and costs." The mother asserted that the father had breached the settlement agreement. She sought sole physical custody of the child; an award of attorney's fees; a modification of the father's monthly periodic-alimony obligation to her; and a judgment declaring the rights, duties, and obligations of the parties pursuant to the settlement agreement. The father filed a counterclaim on January 20, 2015, seeking sole physical and legal custody of the child. On May 26, 2015, the father filed an amended counterclaim. The mother filed a reply to the father's counterclaim and amended counterclaim on July 6, 2015.

         Following ore tenus proceedings, the trial court entered a judgment on August 12, 2016, in which it stated, in pertinent part:

"Having considered the information presented and received by the Court, the Court finds that the parties are probably doing a better job of co-parenting now than they were when they first came before the Court, although they need to continue working on better, more selfless communication and mutual parental support and less 'do it my way' attitude. Both parties have violated the Court Order and the spirit of co-parenting in different ways."

         The trial court proceeded to discuss the choices that had been made by the parties following the entry of the divorce judgment, noting both positive and negative effects the mother's decision to move from Alabama to Tennessee had had on the parties and the child.

         With regard to custody of the child, the trial court determined that "[t]he parties shall continue to share joint legal custody of [the] child" and that the parents would also "share physical custody." (Emphasis in original.) The judgment establishes that, as long as the parties reside more than 50 miles apart, the party having physical custody of the child shall have the final authority on medical, dental, religious, and athletic decisions concerning the child and that the father shall have final authority over educational decisions; it further provided, however, that, if she moves within 50 miles of the residence of the father, the mother will have final authority over all of the above-referenced decisions except those concerning the child's athletic activities. The trial court directed the parties to formulate a schedule to facilitate their joint physical custody of the child, but established a "Visitation/Physical Custody Schedule" in the event that the parties could not reach an agreement. The judgment provides one schedule if the mother remains in Tennessee and another if the mother moves to or near Auburn. The trial court ordered each party to pay his or her own attorney's fees and denied all other requested relief. The mother filed a postjudgment motion on August 31, 2016; the father filed a response to that motion on September 15, 2016. On September 21, 2016, the trial court entered an order amending its judgment with regard to the parties' custody periods with the child occurring before July 31, 2017; those amendments do not affect the present appeal. The mother filed her notice of appeal to this court on October 13, 2016.


         The father testified that he was 35 years old at the time of the trial. He stated that his mother resides in Georgia and that his father is deceased. He stated that he does not have any relatives in Auburn, where he lives with the child in a three-bedroom house that he rents. According to the father, the child has lived in Lee County since she was born. He testified that he is employed as the e-commerce manager at Kinnucan's, a specialty outfitter store, where he has worked since June 2013, that he works from 8:00 a.m. to 5:00 p.m. on Monday through Friday of each week and also some weekends, and that he earns $50, 000 per year. He admitted, however, that he had engaged in online gaming and gambling and that, at one point after the parties' divorce, he had sought out "payday loans" because his finances were so poor. According to the father, he has three other children by two different women. He stated that he had relinquished custody of one of those children, although, he said, he still owes a child-support arrearage related to that child. He testified further that he exercises visitation with his other two children, who live in Georgia, on the first, second, fourth, and, when applicable, fifth weekends of each month. The father testified that, following his divorce from the mother, he began dating Andrea Riemer in March 2014. According to the father, he and Riemer had broken up in July 2016 because she was still married, although he admitted that he had learned that Riemer was still married approximately six months after they had begun dating. He testified that he had been under the impression that Riemer was legally separated and that, after learning that their situation still constituted adultery, he had discontinued the relationship until Riemer gets divorced. According to the father, he lived with Riemer temporarily, for approximately a month and a half, after he sold the marital residence; the child also stayed with them during the father's custodial periods.

         The father testified that the mother moved to Greenback in January 2014 and that, since that time, the parties had met halfway between Greenback and Auburn to exchange the child for their alternating custody periods. He stated that the trip from Auburn to Greenback took between five and six hours and that he had spent approximately $200 on gas each month traveling halfway between the two locations to meet the mother. According to the father, there is not much to do and not a lot of activities for the child to enjoy in Greenback. The father testified that the relationship between the child and the mother had worsened following the mother's move to Tennessee because, when she was with her mother, the child was no longer in the Auburn community or with her friends.

         The father testified that the child has become more active as she has gotten older and that there is a lot for the child to do in Auburn. The father stated that he and the child are part of the community in Auburn and that the child had grown a lot in the community and with friends in the Auburn area. According to the father, his home is near the Auburn University campus and he and the child live near the child's school, walk throughout the University campus, and ride bikes in their neighborhood. He stated that he and the child enjoy hiking, camping, paddle-boarding, and other outdoor activities. He stated that, during his weekend visitations with his other two children that coincide with his custody of the child, they do a lot of activities, get a lot of exercise, and walk campus or "catch Pokemon with the Pokemon Go app." The father testified that he and the child have a very close relationship. He ...

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