Bates v. Bates

103 So. 3d 836, 2012 WL 3764727, 2012 Ala. Civ. App. LEXIS 236
CourtCourt of Civil Appeals of Alabama
DecidedAugust 31, 2012
Docket2110001
StatusPublished
Cited by3 cases

This text of 103 So. 3d 836 (Bates v. Bates) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bates v. Bates, 103 So. 3d 836, 2012 WL 3764727, 2012 Ala. Civ. App. LEXIS 236 (Ala. Ct. App. 2012).

Opinions

PITTMAN, Judge.

Daniel L. Bates (“the father”) appeals from a judgment of the Lauderdale Circuit Court granting Tiffany Bates (“the mother”) permission to relocate from Killen, Alabama, to Chandler, Arizona, with the parties’ two minor children. We affirm.

Factual and Procedural Background

The parties were married in 1994. The father is in the United States Marine Corps; during the marriage, the parties lived together at Marine bases in Oklahoma, Florida, and North Carolina. In February 2006, while the mother and children were living in North Carolina and the father was deployed to Iraq, a Florida attorney filed on the father’s behalf a complaint in the Circuit Court of Okaloo-sa County, Florida (the place of the father’s legal residence at that time), seeking a dissolution of the parties’ marriage. The parties reached a settlement agreement resolving all issues; that agreement stated that Florida law governed the validity, construction, interpretation, and effect of its provisions. The settlement agreement incorporated a separate “shared-parenting agreement” executed by the parties. The shared-parenting agreement designated the mother as the “primary residential parent” and the father as the “secondary residential parent” with rights of “access to and timesharing with” the children according to a standard schedule, or as otherwise agreed upon by the parties by addendum. The parties executed an addendum agreeing “to set visitation and timesharing conducive to their schedules” or, in the event they could not agree, agreeing to be bound by the standard schedule. Further, the parties agreed that, because they did not reside in the same geographical area (defined as being within 100 miles of each other), they would share equally “in the transportation or transportation expenses associated [with the] Summer and December Holiday timesharing, or two round trips per year,” and that the father would be responsible “for the transportation or transportation expenses associated with all other timesharing.” The shared-parenting agreement also provided that “[e]ach parent shall give the other parent written notice at least ninety (90) days in advance of any relocation outside the parties’ same geographic area.”

The father remarried six months after the divorce. His wife (“the stepmother”) was, at the time of the trial of this case, expecting her first child. After the father completed his tour of duty in Iraq, he was stationed in Washington, D.C., until 2011. [838]*838The mother and children moved to Killen, Alabama, where the children’s maternal grandmother and a maternal uncle live. The mother remarried in 2009. The father, who had purchased a two-bedroom, one-bathroom house in Florence, Alabama,1 usually drove or flew to Alabama to exercise his visitation with the children.

In February 2011, the mother’s husband (“the stepfather”) accepted a job with Intel Corporation (“Intel”) in Chandler, Arizona, a suburb of Phoenix. On February 21, 2011, the mother sent the father a certified letter stating that she and the stepfather intended to relocate to Chandler with the children; that the stepfather would begin a new job there on April 4, 2011; that she and the children would join the stepfather as soon as their house in Killen had been sold; that she would inform the father of her new address as soon as possible; and that the mobile telephone numbers for her and the children remained the same. On March 1, 2011, the father sent the mother a certified letter stating that, in order to be near the children, he had accepted a military assignment to the Marine Corps base in Albany, Georgia, and would be moving on June 1, 2011.

On April 13, 2011, the father filed in the Lauderdale Circuit Court a petition to register and enforce the parties’ Florida judgment of dissolution, an objection to the mother’s proposed relocation, and a petition to modify custody. The father also moved for a temporary restraining order, seeking to prevent the mother from relocating the children during the pendency of the action. The mother answered the father’s petition and filed an unverified coun-terpetition to relocate, attaching a letter from Intel that extended an offer of employment to the stepfather. Later, the mother filed an unverified amendment to her counterpetition to relocate, adding the children’s proposed new address in Arizona. Following a hearing, the trial court entered an order requiring the children to remain in Alabama pending a final hearing.

Before the trial of this case on July 18, 2011, the parties stipulated that the substantive law of Florida applied to the issues before the trial court, and the mother filed a verification of her two prior unverified pleadings. Three witnesses testified at trial: the mother, the stepfather, and the father. The testimony of the stepmother was taken by a telephonic deposition several days later.

The mother testified at trial that she had always been the primary caregiver for the parties’ children, a daughter who was then six years old and a son who was then nine years old. The evidence was in conflict with respect to how often the father had exercised visitation with the children between 2006 and 2011. The mother said that the father had come to Alabama for weekend visits with the children every four to six weeks. The father claimed to have visited the children every two or three weeks. The mother denied that the proposed move to Arizona was for the purpose of interfering with the father’s relationship with the children. She testified that, although the judgment of dissolution had ordered the father to pay $130 per month toward her health-insurance costs, she had foregone that support so that the father could have more “travel money.” Each party agreed that the other was a good parent who loved the children and had a good relationship with them and that the stepparents also had good relationships [839]*839with the children. The mother testified that Chandler has a year-round school system, with three two-week breaks — in the fall, in December, and in the spring — and a six-week break in the summer. She acknowledged that none of the parents or stepparents has any relatives in Arizona. She said that she and the stepfather each had one parent and siblings in Lauderdale County; that the father had a brother in Birmingham and parents in Benton, Tennessee, a four-hour drive from Killen; and that the stepmother’s relatives lived in California. The mother responded affirmatively to a question whether she would “agree to modify the visitation schedule and the cost of the transportation in response to [her] proposed move to Arizona.”

The father acknowledged that, until the mother had proposed to move to Arizona, she had willingly accommodated his work schedule and travel plans and had fostered his relationship with the children. The father stated that, after the divorce, he had requested base assignments to locations that would facilitate his visitation with the children. He said that he had turned down a career-enhancing assignment in Turkey because it would have prevented him from seeing the children. He explained that, after returning from Iraq, he had had two consecutive assignments to the Washington, D.C., area and that, although he could have requested a duty station in North Carolina for the second assignment, he had intentionally chosen to remain in the Washington, D.C., area because, he said, he could arrange direct airline flights to Huntsville from one of three airports in the Washington, D.C., area, whereas the airport closest to the North Carolina duty station offered no direct flights to Huntsville.

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Cite This Page — Counsel Stack

Bluebook (online)
103 So. 3d 836, 2012 WL 3764727, 2012 Ala. Civ. App. LEXIS 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bates-v-bates-alacivapp-2012.