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Boyd v. Boyd

Alabama Court of Civil Appeals

March 1, 2019

Jessica Lynn Coburn BOYD,
John W. BOYD.

         Opinion Modified on Denial of Rehearing May 24, 2019.

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[Copyrighted Material Omitted]

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          Appeal from Mobile Circuit Court (DR-16-901200.01)

          Thomas H. Nolan, Jr. , Mobile, for appellant.

          Scott W. Hunter , Daphne, for appellee John W. Boyd.

          Steve Marshall , atty. gen., and Sharon E. Ficquette, chief legal counsel, and Joshoua J. Lane , asst. atty. gen., Department of Human Resources, for the State.[*]

         HANSON, Judge.

         Jessica Lynn Coburn Boyd ("the mother") appeals from a September 28, 2017, order and a December 1, 2017, judgment of the Mobile Circuit Court in which that court, among other things, found the mother in contempt of court; sustained the objection lodged by John W. Boyd ("the father") pursuant to the Alabama Parent-Child Relationship Protection Act ("the

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APCRPA"), Ala. Code 1975, § 30-3-160 et seq., to the mother's relocation of their three children to Midland, Texas; modified the custody rights of the parties so as to award physical custody of the children to the father; and implicitly rejected the mother's constitutional challenges to the APCRPA. We dismiss the appeal as untimely filed as to the contempt order and affirm as to the remaining issues raised by the mother.

         The record reveals that the mother and the father were previously married to one another and that three children, born in 2010, 2012, and 2014, were born of the parties' marriage. In November 2016, the Mobile Circuit Court entered a divorce judgment ratifying and affirming the parties' agreement, under which agreement the parties were awarded joint legal custody of the children, with the mother having physical custody subject to the father's visitation rights, including alternating-weekend visitation, holiday visitation, and visitation every Wednesday afternoon until 7:00 p.m. The divorce judgment further awarded the father the parties' marital home and required him to provide medical-insurance coverage for the children. Finally, the divorce judgment contained provisions required under the APCRPA under which the mother, as a party having custody of minor children as to whom the father held visitation rights, was required to notify the father "of any change or proposed change of principal residence and telephone number or numbers of" the children by certified mail on or before the 45th day before the proposed change in residence; under those provisions, any failure by the mother as to notification of an intent to change the children's principal residence was specifically identified as a permissible consideration in any subsequent modification proceedings.

         In May 2017, approximately six months after the entry of the divorce judgment, the father filed a pleading labeled as an "Objection" pursuant to the APCRPA to the mother's proposed relocation of the minor children to Midland, Texas. See generally Ala. Code 1975, §§ 30-3-169 & 30-3-169.1. Under the APCRPA, as we will discuss in greater detail herein, a person entitled to determine the principal residence of a child generally may change the child's principal residence after providing required notice thereof unless a person entitled to notice files a proceeding seeking to prevent the proposed residence change within 30 days after receiving notice of the proposed change. In that pleading, the father averred, among other things, that he had a close relationship with the children that would be irrevocably harmed by the proposed relocation, that he was "very involved" in family functions with the children and participated in their extracurricular sports activities, and that all of the children's relatives lived in and around Mobile County and that no such family members lived in Midland, Texas. On June 2, 2017, the father filed a request to modify the custody provisions of the divorce judgment so as to award him physical custody of the children, asserting that there had been a material change in circumstances such that the custodial change sought therein would materially promote the health, safety, and welfare of the children and that the benefit of the change would outweigh any detriment. The trial court then ordered that the father's objection pleading and custody-modification request would be set for a subsequent hearing.

         On August 18, 2017, the father filed a motion seeking a finding of contempt against the mother on the stated basis that the mother had already relocated to Texas with the children without first obtaining court approval and that the mother was

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refusing to honor the father's visitation rights set forth in the divorce judgment; the father also sought an immediate return of the children to Alabama and an award of physical custody of the children pending the entry of a final judgment. After the mother had answered the allegations in the father's filings and a guardian ad litem had been appointed to represent the children, the trial court held an ore tenus hearing on the father's contempt motion on September 25, 2017, at which the parties testified. The trial court then entered an order on September 28, 2017, finding the mother in contempt for having willfully relocated the children to Texas despite the pendency of the father's objection and directing the mother to pay an attorney fee to the father in the amount of $1,500 "to purge herself from" the contempt finding; all other matters were reset for a final hearing in November 2017. Before this appeal, no appeal was taken from the September 28, 2017, order finding the mother in contempt.

         The cause was tried over two days in November 2017, during which testimony was elicited from the mother, the father, the parties' seven-year-old child, that child's Mobile County schoolteacher, a Mobile County educational paraprofessional who had worked with the parties' middle child during preschool, the mother's maternal grandmother, and an officer of the mother's Texas employer. On November 21, 2017, after the first trial date but before the second trial date, the mother filed a "Notice of Constitutional Challenge" to the APCRPA; further, pursuant to Ala. Code 1975, § 6-6-227, she sought leave to add the state attorney general as a party, which leave was granted, and the attorney general was added as a party.

         On December 1, 2017, the trial court entered a judgment sustaining the father's objection to the relocation of the children and changing physical custody of the children from the mother to the father. The mother filed a timely motion under Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate the judgment on December 22, 2017, and also filed an "Amended Notice of Constitutional Challenge" to the APCRPA in which she sought to incorporate by reference any additional constitutional arguments made in the mother's motion to alter, amend, or vacate. The father filed a motion to alter, amend, or vacate on December 29, 2017, seeking certain changes in the wording of the judgment. The attorney general then filed a notice of appearance in the action. The mother and the father filed a joint motion on March 9, 2018, seeking to continue the scheduled hearings on their postjudgment motions and purporting to express consent, pursuant to Rule 59.1, Ala. R. Civ. P., to the extension of the time for ruling thereon beyond the 90th days after their filing dates; however, to the extent that their joint motion failed to indicate the consent of all parties (i.e., including the attorney general), that filing was ineffective to avoid the effect of the 90-day automatic-denial provision of that rule. See Fulghum Fibres, Inc. v. Stokes, 186 So.3d 970, 973-74 (Ala. Civ. App. 2015) (discussing, among other authorities, HealthSouth Corp. v. Brookwood Health Servs., Inc., 814 So.2d 267, 268 (Ala. Civ. App. 2000), and A.M.K. v. E.D., 826 So.2d 889, 890 (Ala. Civ. App. 2002), both of which had involved state instrumentalities as additional parties whose consents had not been shown of record so as to avoid the effect of the 90-day denial provision of Rule 59.1).

         Notwithstanding that lack of unanimous consent, the trial court scheduled a hearing on the parties' postjudgment motions for April 9, 2018, more than 10 days after the motions had been denied by operation of law, and the attorney general filed

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a brief in support of the validity of the APCRPA. Following that hearing, the trial court entered an order on April 30, 2018, purporting to grant certain aspects of the parties' postjudgment motions; however, we agree with the mother's view that that order, having been entered more than 90 days after the filing of the parties' postjudgment motions and in the absence of a valid unanimous consent of record to the enlargement of the 90-day period under Rule 59.1, was a nullity. See Fulghum Fibres, 186 So.3d at 974 & n.3.

         On May 3, 2018, the mother appealed from the trial court's December 1, 2017, judgment. That notice was timely as to that judgment because it was filed 35 days after the denial by operation of law of the later of the two postjudgment motions, i.e., the father's postjudgment motion filed on December 29, 2017, which was denied by operation of law on March 29, 2018. See Rule 4(a)(1), Ala. R. App. P. (specifying generally applicable 42-day appeal period); Rule 4(a)(3), Ala. R. App. P. (tolling time for filing notice of appeal when postjudgment motions have been filed); and Roden v. Roden, 937 So.2d 83, 85 (Ala. Civ. App. 2006) (holding that Rule 59.1 applies separately to each distinct timely filed postjudgment motion and that trial court has a full 90-day period to rule on each separate motion).

         The mother, appearing through new counsel, raises four issues. We will initially address the first three issues presented by the mother in her brief on appeal, which each concern the correctness of the December 1, 2017, judgment sustaining the father's objection to the mother's relocation of the children to Midland, Texas, and awarding the father physical custody of the children. The mother asserts that the custody award is erroneous because the trial court purportedly failed to properly consider the mother's alleged conditional willingness to return to Alabama with the children in the event that the father's objection to the children's relocation was sustained; she also contends that several aspects of the APCRPA are unconstitutional and that the trial court erred in changing custody because, she says, the father did not meet the custody-modification burden set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984).

         In order to properly consider the correctness of the December 1, 2017, judgment, this court turns to the pertinent provisions of the APCRPA, which was adopted in 2003, and the record of the parties' actions in response thereto. The APCRPA, by its terms, "promotes the general philosophy in this state that children need both parents, even after a divorce." Ala. Code 1975, § 30-3-160; see also Ala. Code 1975, § 30-3-150 (adopting policy that "minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children").

         The APCRPA requires that all child-custody determinations made after its effective date include the following provisions:

"`Alabama law requires each party in this action who has either custody of or the right of visitation with a child to notify other parties who have custody of or the right of visitation with the child of any change in his or her address or telephone number, or both, and of any change or proposed change of principal residence and telephone number or numbers of a child. This is a continuing duty and remains in effect as to each child subject to the custody or visitation provisions of this decree until such child reaches the age of majority or becomes emancipated and for so long as you are entitled to custody of or visitation with a child covered by this order. If there is to

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be a change of principal residence by you or by a child subject to the custody or visitation provisions of this order, you must provide the following information to each other person who has custody or visitation rights under this decree as follows:

"`(1) The intended new residence, including the specific street address, if known.
"`(2) The mailing address, if not the same as the street address.
"`(3) The telephone number or numbers at such residence, if known.
"`(4) If applicable, the name, address, and telephone number of the school to be attended by the child, if known.
"`(5) The date of the intended change of principal residence of a child.
"`(6) A statement of the specific reasons for the proposed change of principal residence of a child, if applicable.
"`(7) A proposal for a revised schedule of custody of or visitation with a child, if any.
"`(8) Unless you are a member of the Armed Forces of the United States of America and are being transferred or relocated pursuant to a non-voluntary order of the government, a warning to the non-relocating person that an objection to the relocation must be made within 30 days of receipt of the notice or the relocation will be permitted.
"`You must give notice by certified mail of the proposed change of principal residence on or before the 45th day before a proposed change of principal residence. If you do not know and cannot reasonably become aware of such information in sufficient time to provide a 45-day notice, you must give such notice by certified mail not later than the 10th day after the date that you obtain such information.
"`Your failure to notify other parties entitled to notice of your intent to change the principal residence of a child may be taken into account in a modification of the ...

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