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Bardolf v. Bardolf

Alabama Court of Civil Appeals

April 6, 2018

Michael Keith Bardolf
v.
Lynnette Bosse Bardolf

          Appeal from Coffee Circuit Court (DR-12-900020.03)

          DONALDSON, JUDGE.

         Michael Keith Bardolf ("the father") appeals from a judgment entered by the Coffee Circuit Court ("the trial court") denying his petition seeking to modify custody of the two daughters ("the children") of Lynnette Bosse Bardolf ("the mother") and the father. We affirm the judgment.

         Facts and Procedural History

         In November 2013, the trial court entered a judgment in case no. DR-12-900020 that, among other things, divorced the parties, granted the mother sole physical custody of the children, granted the father "liberal" visitation with the children, and ordered the father to pay child support ("the divorce judgment"). In the divorce judgment, the trial court described the different types of custody that are contained in § 30-3-151, Ala. Code, 1975, including specific descriptions of joint physical custody and sole physical custody. The trial court noted that both parties are "fit and proper parents" but that, based upon circumstances surrounding the mother's transfer of her military employment from Alabama to Oklahoma, it would be in the children's best interest for the mother to have sole physical custody.

         On January 8, 2015, in case no. DR-12-900020.01, the trial court entered the first judgment modifying the parties' divorce judgment ("the first modification judgment"), which incorporated a November 2014 agreement of the parties. In that judgment, the trial court noted that the November 2014 agreement was reached following mediation that was ordered after the father filed a complaint seeking to "modify the divorce decree with regard to custody of the parties' minor children." The agreement states that both the mother and the father were represented by separate counsel in executing the agreement and that both the mother and the father "have read, understood, and agreed to the provisions of this instrument and have been fully informed of their rights" before signing the agreement. The parties' November 2014 agreement addressed in detail what the parties described as modifications to "visitation" with the children; in particular, it provided that, from January 2015 until May 2015, the father was granted, each month, week-long visitation with the children in Oklahoma, that each party was granted 28 days with the children in the summer, and that, beginning in August 2015 when the mother and children returned to Alabama, the parties agreed to "split weekdays" and alternate weekends with the children. The parties also agreed to terminate the father's child-support obligation beginning in June 2015, noting the revised custodial periods. Neither the agreement nor the first modification judgment addressed the physical custody of the children or the mother's status as sole physical custodian of the children.

         On April 12, 2016, in case no. DR-12-900020.02, the trial court entered another judgment ("the second modification judgment") in proceedings the father had initiated by filing a petition for contempt and "modification of visitation." Like the first modification judgment, the second modification judgment incorporated a settlement agreement entered into by the parties that reflects that the mother and the father were represented by separate counsel in executing the agreement. The second modification judgment also contained what the parties described as a revised "visitation schedule" but, again, omitted any mention of the physical custody of the children. The second modification judgment provided "[t]hat all other agreed-upon and decided matters in the Final Decree [of Divorce] and Joint Stipulation Agreement remain in effect as laid out in those documents."

         On September 27, 2016, the father filed a petition in the trial court in case no. DR-12-900020.03 ("the .03 action") seeking, among other things, "primary physical custody" of the children. The mother filed an answer and a counterclaim requesting, among other things, an award of "primary physical and legal custody" of the children.

         On March 28, 2017, the trial court held a trial. M.R.B., the parties' 16-year-old daughter, testified that she would like the father to have "full custody" of her and her sister, asserting that the father is more able to care for their medical and educational needs. She also asserted that there was frequent fighting and verbal abuse at the mother's house. M.R.B. opined that she was old enough to make important life decisions for herself. M.R.B. testified that she is more comfortable talking with the father because she believes that "he's not going to go against what I decide." M.R.B. testified that the father had been more involved in her education, that he had signed her up for an ACT college-entrance-exam preparation course, and that he had taken her on two college visits. M.R.B. admitted, however, that she had declined the mother's request to attend the college visits. M.R.B. also testified that the mother "belittles" the father and tells the children that the father is using parental alienation to drive a wedge between the mother and the children.

         R.E.B., the parties' 14-year-old daughter, testified that she and her sister had asked the father to seek sole physical custody "[b]ecause we want, like, more freedom, like, for us to go, like, back and forth, and the medical stuff to be on him." According to R.E.B., there is more fighting at the mother's house and it is "more peaceful" at the father's house. R.E.B. testified that her relationship with the mother began deteriorating the night before they moved to Oklahoma in 2013.

         L.S., the 17-year-old boyfriend of M.R.B., testified that he had often observed tension at the mother's house and opined that the children should live with the father.

         The father testified that the children had approached him about requesting a change of custody. The father asserted that he has "watched [the children] come home, after being with their mom for a week, and spend a day and a half and all [he] can do is try to calm them down and let them decompress." The father testified that the mother had had final decision-making authority related to the children for the past five years and that he would like to have that authority. The father testified that he and the mother cannot effectively co-parent. The father testified that he had rules that he enforced with the children. When asked about R.E.B.'s multiple absences from school while in the father's care over the past seven months, the father testified that he had let the children miss school on occasions when he knew they would not be productive or when they needed to catch up on studying.

         The father testified that, when she declines one of the children's requests, the mother often says "no" and responds with "[b]ecause I'm the parent, " while, he said, he "take[s] the extra time to teach a lesson." The father opined that a custody modification "is the best way, unfortunately the only way left, for hopefully one day the girls to have a positive and healthy relationship with their mother."

         The mother testified that she had had a difficult time co-parenting with the father. The mother opined that the father does not impose and enforce appropriate rules for the children. The mother testified that the children are often defiant, disobedient, and disrespectful, and she asserted that the father "encourages them and empowers them to be disobedient" and that he "doesn't do anything to discourage their behavior when those situations arise." A friend of the mother's also testified that she had witnessed both children be "very disrespectful" to the mother in public settings.

         The mother testified that she generally does not call the children names and that she does not normally yell at them, unless they are being continually disrespectful. The mother testified that she loves and cares for the children. The mother admitted that she is "hard" on the children because she is trying to teach them how to be productive women in society. The mother believes that she and the children are facing a "natural conflict between a mother and a daughter at this age."

         On August 10, 2017, following a trial, the trial court entered a judgment in the .03 action that provides, in pertinent part:

"The court taking judicial notice of its prior Judgments finds that in the original Judgment of Divorce the Mother and Father were awarded joint legal custody of the children and the Mother was awarded sole physical custody. The Father was awarded extensive visitation based upon distance of the parties at the time. On January 8, 2015, in a pending action, the court entered a Judgment modifying visitation by adopting and incorporating a Stipulation and Agreement of the parties. The agreement did not modify the Mother's award of sole physical custody. On April 12, 2016, the court in another Complaint to Modify adopted and incorporated into its Final Judgment the agreement of the parties as to visitation. The agreement stated 'That all other agreed upon and decided matters in the Final Decree [of Divorce] and Joint Stipulation Agreement remain in effect as laid [out] in [those] documents.' The agreement adjudged on April 12, 2016, did not modify custody.
"This custody modification action involves two (2) female minor children [M.R.B.], d/o/b July 13, 2000 (age 17), and [R.E.B.], ...

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