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Rogers v. Rogers

Alabama Court of Civil Appeals

August 30, 2019

Trista Lynn Rogers
v.
Robert Rogers III

          Appeal from Franklin Circuit Court (DR-14-900007.01)

          DONALDSON, Judge.

         Trista Lynn Rogers ("the mother") appeals from a judgment of the Franklin Circuit Court ("the trial court") modifying the judgment divorcing her from Robert Rogers III ("the father") and granting the father sole physical custody of G.L.R. and L.A.R. ("the children"). We reverse the judgment and remand the case with instructions.

         Facts and Procedural History

         This is the third time the parties have been before this court from the underlying modification action. In Rogers v. Rogers, 260 So.3d 840 (Ala. Civ. App. 2018), we set forth the following facts and procedural history of the modification action:

"On June 17, 2015, the trial court entered a judgment divorcing the parties. The divorce judgment, which incorporated an agreement reached by the parties, granted the parties joint legal and physical custody of the children.[1] On June 14, 2016, the father filed a complaint seeking modification of the divorce judgment to obtain sole legal and physical custody of the children, child support from the mother, and a finding of contempt against the mother for noncompliance with the divorce judgment. The mother filed an answer and a counterclaim seeking sole legal and physical custody of the children, child support from the father, and a finding of contempt against the father. A guardian ad litem was appointed to represent the children's interests.
"On July 1, 2016, the mother filed a motion requesting that Judge Terry Dempsey, who had been presiding over the case, recuse himself. On July 5, 2016, the trial court entered an order denying the motion to recuse. On July 11, 2016, the mother filed a petition for a writ of mandamus to this court seeking an order directing Judge Dempsey to recuse himself. This court denied the mother's petition, holding that, even though Judge Dempsey had previously recused himself in the parties' divorce action, the present action was a separate case and the mother had not demonstrated a clear legal right to the recusal of Judge Dempsey in this action. Ex parte Rogers, 218 So.3d 859, 867 (Ala. Civ. App. 2016).
"On August 2, 2016, the parties reached a mediated agreement regarding the father's visitation pending the outcome of the case. The parties did not reach an agreement as to the other issues in the case.
"On March 23, 24, and 27, 2017, the trial court conducted a hearing in which it received ore tenus testimony. At the time of the hearing, G.L.R. was seven years old and L.A.R. was five years old."

260 So.3d at 841-42.

         The mother lives in Decatur, and the father lives in Russellville with his current wife and stepchild. During the ore tenus hearing, the father testified that, since the parties' divorce, G.L.R. had been hospitalized for 9 to 10 days and eventually had been diagnosed with systemic juvenile idiopathic arthritis. In her testimony, the mother described juvenile idiopathic arthritis as an autoimmune disease that affects G.L.R.'s joints and could affect her liver, spleen, and eyes. The mother further testified that, if the disease remains untreated, G.L.R. could develop pain and stiffness, which could affect her ability to walk, and inflammation, which could cause blindness, and that there was the possibility that G.L.R. could die from the disease. According to the father, G.L.R. had been receiving infusion treatments at Vanderbilt University Medical Center in Nashville, Tennessee, every two weeks but, he said, about two months before the trial the treatments stopped controlling her disease and the doctors were trying to obtain approval for her to take a drug that required daily injections.

         The father testified that the divorce judgment granted the mother decision-making authority over medical decisions. According to the father, once she was diagnosed with the disease, G.L.R. had to have her eyes screened as early as possible. The father testified that G.L.R. did not have her eyes checked for over two months after being advised to do so because the mother did not schedule an appointment. In her testimony, the mother attributed the two-month delay to her not being able to find an eye doctor she thought was suitable and having to ask a doctor at Vanderbilt University Medical Center for a referral.

         The father testified that, regarding G.L.R.'s participation in playing for a softball team, G.L.R.'s doctor had told the mother and him that it was good for G.L.R. to be active and to let pain be the guide in the level of activity but recommended against overhand throwing motions. The father testified that at times G.L.R. complained of pain and that the mother did not follow the doctor's instructions about letting pain be the guide. The mother testified that, after G.L.R. had complained of pain in her shoulder on one occasion, she talked to G.L.R. and told her that she needed to attend her softball practice because the team was depending on her but also stated that G.L.R. did not have to play if she was hurting during the practice. The mother further testified that G.L.R. stated that she did not want to practice and that she responded by telling G.L.R. that she had to try.

         The father testified that, on February 28, 2017, G.L.R. had appointments with doctors at Vanderbilt University Medical Center for testing and treatment and that, in the morning on the next day, she had an appointment for further treatment. The mother testified that she had driven G.L.R. to Nashville on February 28, 2017, for her appointment that lasted until 8:00 p.m., that she drove them to her residence afterward, and that she drove them back to Nashville for G.L.R.'s morning appointment. According to the father, he had notified the mother that he was staying overnight in Nashville between the two days of appointments and offered to let G.L.R. stay with him. The father testified that there had been only 15 hours between the appointments and that he had not wanted G.L.R. to unnecessarily spend 4 to 5 hours between these appointments traveling. The mother testified that the traveling had been fine and that L.A.R. becomes worried when G.L.R. goes to her medical appointments. In her testimony, the mother agreed that she and the father had previously reached an agreement regarding the father's visitation to avoid less travel time for the children and that, with her condition, G.L.R. can become stiff during long automobile rides.

         At the time of the trial, G.L.R. attended an elementary school in Decatur and L.A.R. was enrolled in a preschool in Decatur. The father testified that, during his visitation periods, he would drive about an hour to transport the children to and from school. When the divorce judgment was entered, the mother worked in a school near the elementary school and the preschool. The mother's employment was not renewed in 2016, however, and she obtained another job with the Huntsville school system for about a month. She then began working for a high school in Moulton in September 2016. According to the testimony of the mother and the father, the mother's workplace was a 25-30 minute drive from the children's schools. The mother employed a high-school student to take the children to school several days a week.

         The father testified that he was concerned about the distance between the mother's workplace and the children's schools in the event of an emergency, but he acknowledged that no emergency had occurred so far. The father testified that, if he were to have custody of the children, he would enroll the children in schools in Russellville. He testified that G.L.R. could attend a school where his wife worked, which is located less than a 10 minute drive from his house and is near his workplace. The father testified that the children had lived in Russellville before and that, if they attended school in Russellville, the children would have friends and know other children from church and social events.

         When asked if, in the event that the father had physical custody, she would like the opportunity to watch either child if the child was sick, the mother testified:

"Well, it just depends. If the child is sick and they're at home in their pajamas, I mean, asking them to ride in a car for an hour and a half because I assume he wouldn't want me in his home. I mean, asking a child to ride for an hour and a half so I could watch them for six hours, and then put them back in a car for another hour and a half, I don't know that that's exactly feasible."

         The father testified that, since the entry of the divorce judgment, he has worked at a bank in Russellville and that he still lives in the same residence. According to the father, he has 10 or more family members in the area who could help in the case of an emergency with the children. Cynthia Ham, the mother's mother, testified that she helped care for the children and that her mother and the mother's two brothers could also help with the children.

         The mother testified that her contract had not been renewed with the Decatur school system because she had not obtained a master's degree by May 2016. As to her leaving her job with the Huntsville school system, the mother testified: "I wanted to get closer to my girls and, frankly, find a job that better fit me." The mother admitted that, even after her contract with the Decatur school system had not been renewed, she had indicated on job applications that she had never had her contract not renewed. The mother testified that she has notified her current employer of G.L.R.'s diagnosis, and, according to the mother, her employer stated that it would accommodate her when she needed to take time off for G.L.R.'s appointments or for an emergency.

         The father testified that he and the mother do not have a good relationship. The mother and the father agreed in their testimony that they do not communicate well regarding the children. The mother testified that they do not work well together for G.L.R.'s treatment despite a statement by one of G.L.R.'s doctors indicating that they did.

         The mother testified that, in college in 2005, she told people, including the father, that she had cancer to gain attention. The mother testified that the father found out that she had lied about having cancer during their divorce proceedings.

         The father testified that he was concerned about the mother's relationship with J.C. and with J.C.'s being around the children. The father testified that J.C. is currently employed as a teacher and baseball coach at a school in Lawrence County. In his testimony, the father admitted that he knew that the mother and J.C. had dated while the parties' divorce proceedings were ongoing and that he was aware at that time that J.C. had had a past history of substance addiction. J.C. and the mother were both teachers at the same school in Decatur. The mother testified that they met in August 2014 and that J.C. disclosed his prior drug addiction to her shortly afterward. According to the mother, she learned that, before he went to a rehabilitation clinic eight or nine years before the trial in this matter, J.C. had been addicted to painkiller pills, that he had started out abusing prescription medication, and that he had then started buying drugs off the street. The mother testified that they began dating in October 2014 while her divorce proceedings with the father were ongoing. The mother denied that J.C. had resided in her home or had moved things into her residence but then she admitted that J.C. had a fish tank in her home and that he received mail at her residence.

         The mother testified that she and J.C.'s relationship ended in May 2015 but that they rekindled their relationship in early December 2016. The mother denied that they cohabited but admitted that J.C. received mail at her residence after their relationship was renewed. Ham testified that the mother and J.C. became engaged on New Year's Eve. The mother testified that she became engaged in early January 2017 but that she could not remember the date. According to the mother, J.C. was still going to meetings and talking to his sponsor regarding his drug addiction. During examination by the children's guardian ad litem, the mother's testimony included the following:

"Q. And you told me on Wednesday night you've got the number to his sponsor in case you need it; correct?
"A. Correct.
"Q. So, obviously, if that was something that you needed the number to a sponsor, this is something that he still deals with?
"A. I mean, as you said yourself, once an addict, always an addict. You've got to follow the steps and stay on top of it."

         The mother further testified that, in early December 2016, J.C. informed her that he was taking Percocet as prescribed for back pain, that she told him that she did not want him around the children while taking Percocet, and that, after their discussion, J.C. began taking Suboxone. In her testimony, the mother acknowledged that the United States Food and Drug Administration has issued similar warnings against driving, using machinery, or participating in other activities requiring alertness, until those activities could be performed safely, for people taking either Percocet or Suboxone.

         The mother testified that, after he had been issued a subpoena to testify at trial, J.C. told her that he had relapsed in his drug addiction two years before. According to the mother, she then broke off their engagement. Regarding whether she would resume a relationship with J.C., her testimony ranged from stating that she was done with him to stating that she did not know what the future would hold.

         Regarding the issue of child support, the mother submitted a Child-Support-Obligation Income Statement/Affidavit ("CS-41 form"). The father did not submit a CS-41 form or present testimony as to his income.

         At the conclusion of the trial, the trial court requested a report from the guardian ad litem as follows:

"[The guardian ad litem]: And I will let the Court know, and I discussed this with both counsels last week, I have started writing a recommendation, actual formal recommendation based only off of things that were put into court. I don't think it's fair that any party when I'm G.A.L. to put in additional things that they're wanting in court.
"I did not want to finalize that because I knew [the mother] wanted to put on her case this morning and I didn't feel like it would be fair for me to finalize ...

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