David Mark Hodgins v. Sarah E. Hodgins.

84 So. 3d 116, 2011 WL 5110212, 2011 Ala. Civ. App. LEXIS 286
CourtCourt of Civil Appeals of Alabama
DecidedOctober 28, 2011
Docket2100022
StatusPublished
Cited by4 cases

This text of 84 So. 3d 116 (David Mark Hodgins v. Sarah E. Hodgins.) 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
David Mark Hodgins v. Sarah E. Hodgins., 84 So. 3d 116, 2011 WL 5110212, 2011 Ala. Civ. App. LEXIS 286 (Ala. Ct. App. 2011).

Opinion

On Application for Rehearing

BRYAN, Judge.

The opinion of July 29, 2011, is withdrawn, and the following is substituted therefor.

David Mark Hodgins (“the father”) appeals from a judgment entered by the Montgomery Circuit Court (“the trial court”) that modified certain aspects of the judgment that divorced the father and Sarah E. Hodgins (“the mother”).

Procedural History

The record indicates that the trial court entered a judgment divorcing the parties on November 24, 2008. The divorce judgment incorporated a settlement agreement entered into by the parties that set forth the parties’ agreement regarding all issues pending before the trial court, including custody of the one child born during the marriage, a girl born in September 2004. Pursuant to their agreement, the parties were awarded joint legal custody of the child and the father was awarded sole physical custody subject to the mother’s visitation rights. The agreement specifically provided:

“The [father] shall consult with the [mother] on all major decisions involving the health, education, and religion of the ... child, in an effort to resolve these issues by agreement. However, in the event the parties are unable to agree, the parties understand and acknowledge that the [father] by law shall have final decision making authority with regard to [119]*119those major decisions. Major decisions do not include day to day decisions.”

At the time the divorce judgment was entered, the father, who was in the United States Marine Corps, and the child lived in Beaufort, South Carolina, and the mother lived in Montgomery. Regarding visitation, the agreement provided that the mother was to have visitation with the child, supervised by her parents, once a month, from Tuesday afternoon until the following Sunday afternoon. The mother was responsible for the cost of transportation for her visitation periods, and, for that reason, the parties agreed to deviate from the Rule 32, Ala. R. Jud. Admin., child-support guidelines by setting the mother’s child-support obligation at $100 a month.

Finally, pursuant to the agreement incorporated into the divorce judgment, the father was “entitled to request that the [mother] submit to a ten panel hair follicle drug screen no more than once every three (3) months.... ”

The underlying proceeding from which this appeal was taken was initiated by the mother on April 13, 2009, when she filed a petition to modify custody of the child. The mother also requested, as a form of alternative relief, that she be awarded liberal unsupervised visitation with the child. The father filed an answer asserting that the mother’s custody-modification petition was frivolous, and he requested an award of attorney’s fees pursuant to the Alabama Litigation Accountability Act, § 12-19-270, Ala.Code 1975. At the mother’s request, the trial court subsequently appointed a guardian ad litem on behalf of the child.

In September 2009, the guardian ad li-tem and the father filed separate motions to suspend the mother’s visitation with the child pending the final hearing. As grounds, they asserted that the child had begun a pre-kindergarten program and that visitation with the mother was not in the child’s best interest because the child needed to be in school in order to improve her academic performance. The mother objected, and the trial court entered an order that maintained the mother’s visitation rights but that ordered the mother to attend one feeding-therapy session with the child in Montgomery and one feeding-therapy session with the child in Beaufort.1

On October 8, 2009, the father filed a counterclaim requesting, among other relief not pertinent to this appeal, that the mother’s visitation award be modified in light of the fact that the United States Marine Corps had ordered him to transfer to a military base in California.

The trial court conducted an ore tenus hearing regarding the mother’s and the father’s petitions to modify the divorce judgment over three days: October 26, 2009, November 24, 2009, and June 22, 2010. On June 25, 2010, the trial court entered an order that denied the mother’s custody-modification petition and held that the father remained the sole physical custodian of • the child. The trial court further held that the parties remained joint legal custodians of the child, but it modified the divorce judgment insofar as it allowed the father to have final decision-making authority over the child. The judgment stated: “If the parties cannot agree, the [father] shall have final authority over medical and extracurricular matters, and the [mother] shall have final authority over religious and educational matters.”

The trial court also modified the mother’s visitation with the child so that she was awarded the following unsupervised [120]*120visitation: four weeks of visitation with the child each summer, the “entirety of every spring break,” each Thanksgiving or fall break, one weekend of visitation in California each month, and any other time that the parties mutually agree upon. The parties were ordered to equally share the child’s Christmas break.

The trial court further held:
“Should, the [father] be placed on any ‘TDY’[2] period of more than thirty (30) days, the [mother] shall be provided the opportunity to have the child stay with her in Alabama during said ‘TDY’ period. If said ‘TDY period is thirty (30) days or less, then the [mother] may have visitation with the child during said period in California. The court is aware that this provision may need modification to adhere to the child’s school schedule once she reaches a certain age and grade level. The parties are encouraged to work together on this issue and come up with a solution that will benefit the child.”

Finally, the trial court ordered that the father no longer had the discretion to request that the mother submit to a drug screen and that the mother and the father were responsible for their own attorneys’ fees.

The father filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P., and, after conducting a hearing, the trial court made the following pertinent modification to its judgment:

“[S]hould the [father] be placed on ‘TDY’ with the military, the provisions regarding visitation in Alabama for the [mother] shall not begin unless said TDY period is ninety (90) days or longer. Should the TDY period be thirty (30) days or less, the [mother] shall have the opportunity to visit the child in California during that period.”
The father subsequently appealed.

Facts

The record indicates that the mother had been indicted on two drug charges before the parties divorced — one misdemeanor and one felony. Since that time, the mother had participated in the pretrial-diversion program through the Montgomery County District Attorney’s office. The mother testified that she had taken a drug test at the father’s request in October 2008 and that she had voluntarily submitted to a drug test in July 2009; on both occasions, she had not tested positive for any drugs. The mother stated that the last time she had used illegal drugs was before the divorce judgment was entered. At the time of the June 2010 hearing, the mother’s charges had been nol prossed.

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Cite This Page — Counsel Stack

Bluebook (online)
84 So. 3d 116, 2011 WL 5110212, 2011 Ala. Civ. App. LEXIS 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-mark-hodgins-v-sarah-e-hodgins-alacivapp-2011.