Bird v. Bandy

192 So. 3d 1165, 2015 Ala. Civ. App. LEXIS 197, 2015 WL 4991800
CourtCourt of Civil Appeals of Alabama
DecidedAugust 21, 2015
Docket2140336 and 2140337
StatusPublished

This text of 192 So. 3d 1165 (Bird v. Bandy) 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
Bird v. Bandy, 192 So. 3d 1165, 2015 Ala. Civ. App. LEXIS 197, 2015 WL 4991800 (Ala. Ct. App. 2015).

Opinion

MOORE, Judge.

Anastasia R. Bird (“the mother”) appeals from two judgments entered by the Bibb Circuit Court (“the trial court”) in separate actions filed by the mother and Richard R, Bandy (“the father”) to modify their divorce judgment. We affirm the judgments in part and reverse them in part.

Factual Background and Procedural History

The parties were married in 2002, and their marriage produced two children, A.B., who was born on October 14, 2004, and I.B., who was born on May 15, 2008. During the marriage, the parties resided with the children in Woodstock, which is located in north Bibb County. By 2009; both parents were working for the same employer in Calera, which is located in Shelby County and is approximately a 45-to 50-minute drive from the marital residence in Woodstock. During the marriage, the father’s parents provided day care for the children when the parties worked.

The parties were divorced by a judgment entered by the trial court on February 10, 2010; that judgment incorporated a settlement agreement between' the parties, which provided, among other things, that the parties would exercise joint legal and physical custody of- the children, that the father would have final decision-making authority over day-care and academic matters, and that the children would spend as close to equal time with each parent as possible. The settlement agreement further expressed the parties’ intent that they would both remain living in the north Bibb County area in order to assure that the children, would be educated in nearby public schools and that, the father’s parents would continue to provide day care. The settlement agreement further addressed the possibility of the mother’s relocating as follows:

-“[S]hould [the mother] move to such a distance that she can not transport the [1167]*1167children to day care or later school due to distance the children would be required to travel then, in that event, the parties agree the children .will, remain, during the school week, in the home with the [father] until both parties return to the general area, unless the parties agree differently, in writing, and the parties return to an attorney or attorneys of their choice to prepare the necessary documents to alter or amend the living arrangement of the minor children or until a Court .can hear the case.”

After the divorce, the mother moved less than 10 miles away from the marital residence to a residence located in Tuscaloosa County. As was agreed between the parties, A.B. first attended a kindergarten and then an elementary school in Bibb County and I.B. eventually attended a kindergarten in Bibb County. Because of the proximity of the mother’s new residence, which allowed the mother to transport the children to day care and school, the parties kept the children approximately an equal amount of time as they had intended. When the father exercised physical custody of the children, he depended on his mother, his sister, and his then fiancée to care for the children in the mornings, to transport the children to and from school, and to provide the children with after-school care until he arrived home from work, usually between 5:30 and 6:00 p.m.

On November 29, 2012, the mother filed a petition requesting, among other things, that the trial court modify the divorce - judgment to award her sole legal and physical custody of the children and to require the father to pay her child support; that petition was docketed as case no. DR-10-900001.01 (“the .01 action”). The mother alleged that the. father had basically delegated his child-care responsibilities to his mother, his sister, and his then fiancée and that decisions would soon have to be made regarding the appropriate school 'for each child to attend as they aged out of their respective educational institutions. On January 7, 2013, the father filed a petition,- .requesting, among other things, that the trial court modify the divorce judgment to award him sole legal and physical custody of the children; the father’s petition was docketed as case no. DR-10-900001.02 (“the .02 action”). In his petition, the father alleged that the mother intended to remarry and move to Georgia. On April 12, 2013, the trial court granted the mother’s motion requesting that the .01 action and the .02 action be consolidated “so that all issues may be heard at the same time.”

The consolidated actions were tried on July 10 and August 21, 2014. During the trial, both parties agreed that the1 children were doing well in the joint-custody arrangement and that the parties and their new spouses worked together to benefit the children.. The mother clarified that she had filed her modification petition because she; was proposing to relocate to Shelby County and that, ifithe relocation was permitted, she wanted to enroll the .children in school in Shelby County. The mother explained that she had remarried in April 2013, . that she had recently listed her Tuscaloosa County home for sale, that she and her new husband were looking for a new home- in various areas in Shelby County, that were closer to her workplacé in Calera, and that she was interested in enrolling the.children in the school system in the area where she would eventually be moving. At the time of the trial, the mother had not sold her home in Tuscaloosa County, she had not purchased a new home, and she had not identified a new school system for the children. The father testified that he had filed his modification petition so that he could gain sole legal and physical custody of the children in the event the mother moved to Shelby County, [1168]*1168The father testified that he' believed it would be in the best interests of the children to remain in Woodstock in the parties’ former marital residence, which, he said, is surrounded by the . dwellings of his immediate.family, and to continue in the school system in which they were currently, enrolled and in which it was undisputed that the children had excelled, but that he would also consider moving to Shelby County to maintain the parties’ joint-custody arrangement; if necessary. The trial court permitted- the pleadings to be amended to conform to the evidence and new theories presented by the parties. See Rule 15(b), Ala. R. Civ. P.

The trial court entered separate, but identical, judgments in the .01 action and the .02 action on September 8, 2014. Those judgments provide, in ■ pertinent part:

“[The father] pled requesting that, should [the mother] move outside the general ‘area’ of Bibb County, the Court modify the final judgment to allow him to provide the primary living arrangements for the children during the school term. Based upon [the mother’s] notice to the Court that she and her husband would be moving to some area of Shelby County by or before the end of th[e 2014-2015] school year, this Court awards the primary living arrangements of the children during school terms to [the father]. The parties may choose to keep the same physical custodial time with the children until [the mother] moves.”

The judgments further set out a specific schedule in the event the parties could not agree on visitation. The judgments also awarded the father child support and ordered the mother to pay one-half of certain expenses incurred on behalf of the children. Finally, the trial court ordered the mother to pay $7,500 toward the father’s attorney’s fees.

The mother filed a motion to alter, amend, or vacate the judgments on September 28, 2014.

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Bluebook (online)
192 So. 3d 1165, 2015 Ala. Civ. App. LEXIS 197, 2015 WL 4991800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bird-v-bandy-alacivapp-2015.