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Rigby v. Rigby

Alabama Court of Civil Appeals

August 3, 2018

Regina Moates Rigby
v.
Christopher Lee Rigby

          Appeal from Elmore Circuit Court (DR-16-900059)

          PER CURIAM

         Regina Moates Rigby ("the mother") appeals from a judgment of the Elmore Circuit Court ("the trial court") that, among other things, divorced her from Christopher Lee Rigby ("the father") and awarded them joint custody of the parties' four children. We affirm.

         Background

         The parties were married in 1998. Four children were born of their marriage: Tyler, who was born in December 2002; Brianne, who was born in July 2006; and Wyatt and Bailey, twins who were born in October 2009. In February 2016, the mother filed a complaint seeking, in relevant part, a divorce from the father, an award of "primary" physical custody of the children, and an award of child support. The father answered the mother's complaint and counterclaimed seeking, in relevant part, a divorce from the mother, an award of "primary" physical custody of the children, and an award of child support. The parties continued to live in the marital residence during the pendency of the divorce action but had separate bedrooms. The trial court conducted a trial on March 6, 2017. The relevant evidence presented revealed the following.

         The mother testified that the father was a registered nurse when they met. She was a respiratory therapist. The mother said that the father later returned to school on two occasions to become a nurse practitioner and a nurse anesthetist, respectively. During cross-examination, the mother stated that she had also obtained a bachelor's degree and a master's degree in business during the marriage. She also testified, however, that she had not been employed in a position requiring those degrees.

         The mother said that, during the approximately 30 months it took him to obtain his nurse-anesthetist certification, the father had not worked or provided support for the family. The mother said that the parties had used the proceeds from the sale of a house that she had owned before the parties were married to help meet living expenses during that time. The mother, who had stopped working for a period, started working as a respiratory therapist again after Brianne was born.

         After the father obtained his nurse-anesthetist certification in January 2008, he began working in a group practice in Montgomery, where he was still working at the time of the trial. The mother said that she had worked only two days per month from approximately 2008 until early 2016 because Wyatt and Bailey were born prematurely and because "MRSA," which, she said, was "a resistant form of staph," was discovered in her breast. The mother testified that, despite suffering various illnesses and complications with her health, she had continued to provide for the children's care during the marriage. She answered in the affirmative when asked during direct examination whether the parties' marriage had, by agreement, been "sort of ... traditional where the wife is working less, taking more responsibility with the children, [and] the husband [is] working more, paying more expenses ...." She said that the father had preferred that arrangement and had even, at times, expressed his desire for her to stop working altogether. The mother described the father's work schedule before the divorce action was commenced, which involved being on call for substantial periods of time, working long hours, and getting off work at odd hours.

         The mother testified that she was planning to return to work after the parties' divorce and expected to earn a gross monthly income of $2, 429. She also offered as evidence a list of what she anticipated her monthly expenses would be after the parties were divorced. The monthly expenses totaled $9, 645 and included costs for the children and health insurance to cover them.

         The mother also testified that the father had earned more than $200, 000 in 2016. She said that she was requesting $3, 637 per month in child support. If awarded that amount, she said, she wanted $1, 000 per month as alimony for a period of five years; she said that she wanted alimony for a longer period of time if she was awarded less child support.

         The mother testified regarding the parties' lack of physical intimacy and the self-esteem issues that she had suffered as a result of feeling that the father was not attracted to her. She said that the father had expressed his desire to get divorced in 2014, and she offered documentary evidence demonstrating his communications with other women. She denied that she had had an affair, although she did admit to kissing a man at a restaurant during the pendency of the divorce action.

         Extensive evidence was offered regarding the father's viewing of pornography on the Internet in the bedroom that the parties had shared before the divorce action was commenced --where the children had also sometimes watched television and played. It is undisputed that the father viewed pornography; however, the mother clarified that she was not accusing the father of abusing the children, forcing them to view pornography, or doing anything inappropriate with them. She stated that she was "[a]bsolutely not" accusing him of any sexual activity involving the children. She said that the foregoing evidence simply demonstrated his lack of sound judgment.

         The mother testified regarding contact she had made with the Family Sunshine Center in June 2016 to, she said, get "help" with the way that the father treated her because, in her opinion, it "was not right." Specifically, she stated: "I went because my husband had not touched me in 12 years."[1] She said that, although she had protested, the counselor at the Family Sunshine Center had contacted the Department of Human Resources after hearing the mother's complaints regarding, among other things, the father's viewing of pornography. She denied that she had accused the father of anything. She said that nothing had come of the investigation conducted by the Department of Human Resources, which, she said, had involved interviewing the children.

         The mother also testified regarding the various medical conditions that affected Wyatt and Bailey. Wyatt, she said, weighed two pounds when he was born and suffered from "a lot of [gastrointestinal] problems, some lung problems from prematurity, [and] some feeding issues." She said that Wyatt had undergone four surgeries but that he was doing well at the time of the trial. The mother testified that Bailey had weighed one pound, seven ounces when she was born. She said that Bailey was cognitively delayed and suffered from vision problems and "sensory issues"; for instance, on one occasion, she said, they discovered that Bailey had apparently removed her own toenails and had given no indication that she was in pain or discomfort. The mother said that Bailey did not begin chewing food until she was more than three years old because she had been fed through a tube as an infant and had therefore not developed the necessary reflexes to eat properly.

         At the time of the trial, the mother said, Bailey was doing better but was "by far not to her peers." She said that Bailey was undergoing speech, occupational, and equestrian therapy at the time of the trial and that she was enrolled in a soccer program. She said that Bailey had also participated in gymnastics and swimming, but she said that, around the time that he said he wanted a divorce in August 2014, the father had not agreed to let Bailey continue participating in those activities. The mother said that she did not doubt that the father loved the children, but, she said, he had not participated "at all" in obtaining services for Wyatt's and Bailey's special needs.

         The mother testified that she would like the parties to be awarded joint legal custody of the children and that she wanted physical custody of the children. She said that she still wanted the father to be involved in the children's lives and that she believed that maintaining a relationship with him was "[a]bsolutely" critical. The mother testified that she takes care of the children during the week. She said that, during the pendency of the divorce action, she had unsuccessfully attempted to communicate with the father regarding the children. The mother opined that she could provide better stability for the children and that they were her priority.

         The mother testified that the father had attempted to care for the children alone for one whole week during the pendency of the divorce action and that Wyatt and Bailey had struggled during that time. Specifically, she said that Wyatt had urinated on himself and Bailey "had had a meltdown in therapy." In addition to the care that she provided the children, the mother said that they came to her if they had an issue with something. The mother said that the father was not patient with Bailey and that he had screamed at her on one occasion during the year before the trial. The mother stated that she participated in the children's field trips and activities and that the father was not involved in those activities. During cross-examination, the mother admitted that the father had provided care for the children occasionally and also stated: "We did a lot of joint decision making"; she disagreed that she "wore the pants in the family."

         The mother called the father to testify as an adverse witness. The mother's attorney questioned the father about his work schedule, specifically about the week before the trial as an example. The father testified that he had not seen the children a great deal during that week. He said that he worked an average of 55 hours per week. Regarding his anticipated work schedule following the parties' divorce, however, the father said:

"I make the schedule at our work[, ] and I've talked with my bosses ... and I've been given the ability to make whatever type I need that works out for me. So[, ] for shared custody, if that were to be the case, I can work out an 8:00 to 4:00 schedule or a 9:00 to 5:00 schedule, whatever I need in order to be able to help take care of the kids."

         The father admitted that, when at the marital residence during the pendency of the divorce action, he had spent substantial periods of time in his room and away from the mother and the children. He said that he had done so because he felt "uncomfortable" around the mother and wanted to "keep the peace." When pressed further by the mother's attorney, the father admitted that he had not spent as much time with the children as he "should have." The father also admitted that, at the time of his deposition, he had been unaware that Bailey was continuing to receive speech therapy. Regarding transporting the children to their various appointments, the father said that "[b]y far the majority of" that responsibility had fallen on the mother.

         The father testified that, before Wyatt and Bailey were born, he "did everything [the mother] did" regarding the children's care. He said that the mother had become more involved in the children's care after Wyatt and Bailey were born due to the nature of their medical conditions. The father testified that he could adequately care for the children, as he had done in the past. He said that he had provided adequate care for the children during the week they had spent alone with him during the pendency of the divorce action, although he recalled Wyatt wetting the bed and Bailey becoming upset during a therapy session.

         Regarding the parties' ability to co-parent, the father said that they had not been successful during the year preceding the trial. He admitted that he had not communicated with the mother regarding the children's teachers or therapists. He agreed that the children had become accustomed to having the mother around most of the time. The father also testified that the mother had not tried to communicate with him regarding the children.

         The father admitted that he had visited pornography Web sites "[p]ossibly" every other day. He opined that he did not view pornography excessively, and he testified that the children were not in the parties' bedroom while he viewed pornography. The father also admitted to having communicated with other women during the marriage, and he said that he had told the mother he thought they should get divorced in 2014. He denied having an affair or committing adultery. The parties' attorneys orally stipulated during examination of the father that the Department of Human Resources had conducted an investigation but had found no abuse indicated.

         The father testified that the mother had downloaded sexually explicit stories from the Internet. He said that he had seen material printed from a Web site and sex toys in the mother's nightstand drawer and that the stories included explicit descriptions of specific sex acts involving, among other things, multiple people. The father testified that the mother had, within the five years preceding the trial, hosted what the father's attorney described as a "sex toy party" in the marital residence. The father said that he did not believe any of the foregoing made the mother a bad person or a bad mother. He said that, on at least one occasion, he had discovered condoms in the mother's gym bag. He agreed that the parties had not been physically intimate in many years.

         The father testified that he earned base pay of $150, 000 annually and that, in 2016, he earned roughly $50, 000 in additional income as a result of "call pay" and "overtime pay." He said that he could change his schedule after the parties were divorced, choosing to forgo the latter forms of compensation and elect to earn only his $150, 000 base pay. The father stated that he expected to earn $12, 500 per month following the parties' divorce. If ordered to pay monthly child support of $3, 326, the father said, his total monthly expenses would be $12, 385. However, the father asked the trial court to deviate from the "standard child support obligation" if he was awarded custody of the children during alternating weeks. He said that he would have to provide for the children as much as the mother would. When questioned by the mother's attorney regarding the disparity between the parties' anticipated incomes, the father said of the mother: "I think she's a well educated woman and capable of making much more than $29, 000 a year."

         The mother called several other witnesses to testify, including two school teachers, a speech therapist, and a teacher for the visually impaired. The overall takeaway from much of the testimony elicited by the mother from those witnesses was that she was involved in the children's school activities and therapies and that the father was not. During questioning by the father's attorney, the witnesses who said they were "mandatory reporters" noted that they had never made a report regarding suspected abuse of the children.

         During his case-in-chief, the father called three witnesses to corroborate his testimony that he was a good father and was capable of caring for the children. One of the witnesses testified that the mother had approached her in a department store to discuss the parties' divorce and the father's sexual orientation; she said that one of the children had been standing next to the mother during the encounter. Testimony elicited from one of the other witnesses implied that the mother had engaged in extramarital affairs. The mother disputed much of that testimony in rebuttal.

         Tyler testified extensively in camera. Tyler said that he loved both of his parents but preferred to live with the mother, and he opined that staying with the father every other weekend would be best. Tyler's testimony also indicated that, among other things, he believed the mother could better care for the children. Tyler's testimony also indicated that a nanny or a babysitter had provided for some of the children's care and transportation. At the close of all the evidence, the trial-court judge stated, among other things: "I will say the one good thing that I've heard today was through [Tyler] who sat there and said both of my parents encourage me and my siblings to interact with the other parent."

         On August 17, 2017, the trial court entered a judgment that provided, in relevant part:

"The [father] has a bachelor's of science [degree] in nursing, which he obtained prior to the parties' marriage, as well as a master's of science [degree] in nursing and a master's of science [degree] as a nurse anesthetist, both of which he obtained during the marriage; the [mother] has a bachelor's of business [degree] and a master's of business [degree, ] which she obtained during the marriage, as well as an associate's degree in respiratory therapy, which she obtained prior to the marriage.
"Both parties have worked during the marriage ... though the father has been the primary income earner of the family. The children require a great deal of time allocated to their care. Neither party will individually have enough time to care for the children, as they required a nanny/babysitter while married due to their time issues even when the [mother] was not employed, and the [mother] has had to obtain ...

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