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Hubbard v. Hubbard

Alabama Court of Civil Appeals

July 28, 2017

Pamela Hubbard
v.
James C. Hubbard

         Appeal from Shelby Circuit Court (DR-13-900524)

          THOMAS, Judge.

         Pamela Hubbard ("the mother") and James C. Hubbard ("the father") were married in New Jersey in April 2003. Thereafter, they moved to Shelby County. There are three children ("the children") of the marriage.

         In 2013 the father filed a complaint in the Shelby Circuit Court seeking, among other things, a divorce from the mother and an award of custody of the children. The mother filed a counterclaim seeking, among other things, a divorce from the father and an award of custody of the children. In July 2013 the mother filed a protection-from-abuse ("PFA") motion in the circuit court. That motion was treated as having initiated a separate action and was assigned a separate case number. The mother alleged in the PFA motion that the father abused alcohol, had become "obsessed with firearms, " had displayed threatening behavior, had verbally and emotionally abused her, and had committed various acts designed to terrorize her. The circuit court entered a PFA order, awarding, among other things, "primary" custody of the children to the mother.

         In August 2013 the mother filed a motion in the divorce action seeking pendente lite relief, and the circuit court entered an order in October 2013 that, among other things, incorporated the parties' agreement that the father would exercise certain weekend and holiday visitation and provided that "[n]either party is to leave the state with the children." See § 30-3-160 et seq., Ala. Code 1975, the Alabama Parent-Child Relationship Protection Act ("the Act").

         The parties filed numerous motions and responses in the divorce action, including the mother's November 4, 2013, motion that she styled: "Motion to Allow Mother and Children to Relocate to New Jersey." After a hearing, the circuit court entered a temporary order, addressing all the then-pending motions, and, in pertinent part, denying the mother's request to relocate the children to New Jersey. In May 2014 the mother filed a motion she styled: "Second Amended Motion for Contempt and Renewed Motion to Allow Mother and Children to Relocate to New Jersey." The mother asserted that she had experienced financial difficulties as a result of the father's alleged failure to comply with certain support orders, that she had a master's degree in education but was not licensed to teach in Alabama, that she had been "left destitute, " and that she could support the children if the circuit court allowed her to relocate the children to New Jersey where, she said, they could live with her mother and she could obtain employment that would provide health insurance for the children. The children's guardian ad litem filed a motion in which she raised certain concerns regarding the father's alcohol consumption, and, in September 2014 the circuit court entered an order modifying the father's visitation to supervised visitation on two Saturdays per month, but only when he produced a negative alcohol screen.

         On August 20, 2014, the circuit court held a trial. The father testified that he did not want the children to relocate 15 hours away from him, that he could not afford airfare to visit the children, that he would not be able to visit, that the children had family in Alabama, and that he loves the children. He testified:

"I think that being without a loving father who is there for them every single day, to play with them every day, to hang out has led into some issues. [The middle child] is developing a stutter. [The oldest child], who just turned seven, still sleeps in diapers at night and [the youngest child], he's a strong boy, and he needs a man in his life."

         The mother testified that she would be willing to meet halfway between Alabama and New Jersey to exchange custody with the father; however, her testimony revealed that, in general, she had not encouraged relationships between the children and the father or the children's paternal relatives. The mother said that the father's family had "made [her] life extremely difficult over the past couple of years." She said that they had not believed "what was going on in our household, and I got no help from [his] family." She testified that she feared that the father would someday verbally abuse the children; the father testified that he feared that the mother would someday kidnap the children.

         The parents agreed that the children's school is a good school and that the children enjoy extracurricular activities in Calera. The mother testified that she managed all the children's daily activities -- dressing, bathing, diapering, eating meals, and reading; the father testified that he enjoyed cooking, playing, watching movies, and visiting the children at school. The father said that, in Alabama, the children enjoyed various outdoor activities with their paternal cousins. The mother testified that the children have maternal and paternal relatives in New Jersey and Pennsylvania, that New Jersey schools are "great, " and that her mother's four-bedroom house is near a library and a community center.

         The mother testified that she worked two jobs and that she was seeking employment in the Shelby County school system. According to the mother, the uncertainty regarding whether she would receive support from the father had rendered her unsure as to whether she could "survive" in Alabama. She said that she received various forms of government assistance and that she had incurred medical bills because the father had canceled the family's health-care insurance without her knowledge. She denied that she had refused to become certified to teach in Alabama or to make payments on the marital residence or her automobile so that she could claim that she needed to relocate to New Jersey. She offered testimony intended to demonstrate that the father abused alcohol everyday and that he had left firearms within the reach of the children. She offered a number of audio recordings into evidence that demonstrated that, when the parties argued, the father called her crude and profane names in the presence of the children.

         When asked how relocation to New Jersey would benefit the children, the mother said:

"The rent or mortgage would be nonexistent. I have a place to live [with the mother's mother]. I wouldn't have any house expenses. I would contribute a little bit to some utilities. I would mostly pay for my groceries and anything that has to really do with the children and myself and it would really help a lot to know that I could come home and the lights would be on instead of whether or not they are going to be on.
"....
"I will have a place to live. I already have my certification [to teach] in New Jersey. I will be able to get a full-time job. I do not need to take any courses for substitute teaching. Down here, I have to take a course which I have, I do have. I have help. My recently widowed mother, I will be living with her. And my friends and family are up there and they have offered their help in any way that they can to make sure that my children and I are taken care of.
"And I know I can get a good job. I still have contacts. I have a network of teacher friends and supervisors that are still in New Jersey and some have moved districts but that just gives me a bigger opportunity to look at other districts."

         The following exchange occurred during the cross-examination of the father:

"Q. How do you expect [the mother] to stay here ... in the Alabama area if you are not providing her with any support?
"A. She's -- there has been plenty of support. It's just been lately that I've had to bump, you know.
"Q. Sir, your house is in foreclosure. You testified that y'all have a ton of debt. You're not paying current child support. How do you expect her to survive and pay for things for your children, have a roof over their head, food to feed them, money to pay medical bills, enroll them in school if you are not paying any support to her? How do you expect her to stay here in Alabama and survive?
"A: I will just have to do better. I don't see how the alternative is better."

         On October 20, 2014, the circuit court entered a judgment divorcing the parties and, in pertinent part, awarding sole legal custody and "primary" physical custody of the children to the mother, subject to the father's right to supervised visitation. The circuit court denied the mother's request for permission to relocate the children to New Jersey. The October 20, 2014, judgment was not a final judgment. The circuit court specifically reserved "all issues not addressed herein, " which included a property division, because, at that time, the parties were each contemplating filing for bankruptcy.

         The parties filed separate motions seeking reconsideration of the October 20, 2014, judgment. In her motion for reconsideration, the mother argued that the circuit court had abused its discretion by denying her request for permission to relocate the children to New Jersey. The mother argued that the circuit court had misapplied the rebuttable presumption that relocation is not in the best interest of a child.[1] She also argued:

"The primary reason why the relocation is in the best interest of the minor children is a financial one. The testimony at trial showed that the [mother] is actively seeking more gainful employment but is hindered by current licensing requirements in [Alabama], limited openings given the time of year and financial limitations related to the ages and child[-]care needs of the children as well as the [father's] spotty payment of child support and absolute refusal to pay alimony as ordered by the Court. While the financial award in terms of child support and alimony set by the Court could help alleviate some of those financial concerns, the [father, ] by both his past and current conduct[, ] has made clear that the payment of his Court ordered child[-]support and alimony obligations are not his primary concern and that under no circumstances has he or will he pay alimony. Both parties have filed bankruptcy and the marital home will soon be foreclosed. When this occurs the [mother] and the minor children will have no place to live. The [mother] will be unable to provide suitable housing, food and clothing for the minor children with the [father's] refusal to pay alimony, his uncertain and untimely payment of child support and the money she is currently earning. The [mother] will be left to provide for herself and three young children earning only minimum wage with take-home pay of less than S1, 000.00 per month. As presented at trial, the bare minimum to support the minor children will significantly exceed that amount. Even if the [father] was timely in his payment of child support (which he has not been), $2, 000.00 a month will not support this family. The best interests of the minor children could not possibly be to suffer in poverty when they could relocate with the mother to New Jersey where their basic needs would be provided by the maternal grandmother while the [mother] seeks gainful employment in a better job market, with higher income and with the connections necessary to get a job in the existing school system. Leaving the children in their current financial predicament is clearly not in their best interests."

         At the January 20, 2015, hearing on the motions for reconsideration, the father's attorney argued that the mother had not availed herself of opportunities to become employed in Alabama because, she argued, to do so would negatively impact the mother's "goal" of relocating the children to New Jersey. The father's attorney argued:

"I think this Court heard evidence that [the mother] has no intention of working with or coparenting with [the father] even when they lived in the same county much less when they are thousands of miles away and with the small incomes of both parties that there would be no visitation practically for [the father] and his children and for him to have an active part in his children's life. So I ...

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