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 ...