Knight v. Knight

53 So. 3d 942, 2010 Ala. Civ. App. LEXIS 128, 2010 WL 1837780
CourtCourt of Civil Appeals of Alabama
DecidedMay 7, 2010
Docket2090001
StatusPublished
Cited by4 cases

This text of 53 So. 3d 942 (Knight v. Knight) 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
Knight v. Knight, 53 So. 3d 942, 2010 Ala. Civ. App. LEXIS 128, 2010 WL 1837780 (Ala. Ct. App. 2010).

Opinions

THOMPSON, Presiding Judge.

Kevin J. Knight (“the father”) and Sarah J. Knight (“the mother”) were divorced by an August 29, 2008, judgment of the trial court. The divorce judgment incorporated an agreement reached by the parties. Pursuant to the divorce judgment, the parties shared joint legal and physical custody of their minor child.

On February 19, 2009, the mother filed a petition seeking to modify custody of the child, requesting permission to relocate to California with the child and seeking a modification of child support. The father filed an answer in which he objected to the proposed relocation and asserted counterclaims seeking an award of custody of the child and an award of child support.

The trial court conducted a hearing over the course of two days. On September 9, 2009, the trial court entered a judgment in which it awarded primary physical custody of the child to the mother, authorized the mother to relocate with the child to California, and modified the father’s child-support obligation. The father filed a postjudgment motion, and the trial court denied that motion. The father timely appealed.

The record indicates that the parties moved to Alabama some time before the birth of them child in October 2006. The parties’ testimony established that they each grew up in or near Santa Ynez, California, that they went to school there, and that they moved from the Santa Ynez area to Alabama in order for the father to work with his uncle in constructing houses in Alabama. The father’s testimony indicates that the initial plans to work with or for his uncle did not work out and that, thereafter, the father created his own construction business. The father and his business partner construct and remodel homes to sell to others.

The mother owned a clothing store until January 2009. The mother testified that she traveled to California monthly to purchase merchandise for her store and that she often took the child with her on those buying trips. The mother explained that she had a great deal of extended family in the Santa Ynez area and that the mother and the child visited family and friends when they went on buying trips.

The parties divorced in August 2008. The custody agreement incorporated into the parties’ divorce judgment provided that the mother have custody of the child for 7 of 11 days and for the father to have the child for the remaining 4 days of the 11-day period. The mother explained that [945]*945the parties anticipated that the father would have the child for two consecutive four-day periods when she traveled to California for her business. However, the mother testified that, after the divorce, the father did not exercise all the custodial periods available to him and that, on at least one occasion after the parties’ divorce, she had taken the child with her when she traveled to California. The mother submitted into evidence an exhibit documenting the dates on which she had had custody of the child, the dates on which the father had had custody of the child, and custodial days available to the father that he had not exercised. The mother testified that, after she filed her February 2009 complaint seeking authorization to relocate to California with the child, the father fully exercised his custodial time.

The father disputed that he had not fully exercised his custodial periods. The father stated that he had rescheduled some of the days he was to have the child but that he believed he had not missed any opportunity to have custody of the child.

After the parties moved to Alabama from California, the mother’s sister and parents, who had lived in the Santa Ynez area, also relocated to Alabama to be closer to the parties. The mother explained that her parents are attending college in Alabama in order to obtain their teaching certificates. The mother testified that her sister and the sister’s family had spent a great deal of time traveling between California and Alabama but that her sister and her sister’s family had recently returned to live in California.

The mother testified that she wanted to relocate with the child to California for several reasons. The mother testified that her business had been unprofitable and that she had sold the business. The mother stated that she had attempted to locate employment in Alabama but that her efforts had been unsuccessful. At the time of the hearing in this matter, the mother and the child were living in government-subsidized housing.

The mother testified that she had received an offer for a job in California with a salary of $48,000, plus commissions; the mother stated that she believed her annual income could be as much as $60,000 in that job. According to the mother, the job offer was a position in event sales for a winery. The mother explained that, in addition to the salary, the job was attractive because she would be required to work away from her house for only two days each week; the mother stated that she could work from home for the remainder of the time, which would enable her to spend more time with the child. The mother testified that she could rent a home in Santa Ynez for $500 per month from the parents of a long-term male friend.

The mother presented evidence regarding a Montessori preschool she planned for the child to attend on the days she worked away from her home. The mother stated that, although she had been satisfied initially with the church preschool the child has been attending, she believed that it was in the nature of a “day care.” The mother testified that she believed the child needed more educational opportunities, such as those available at the preschool in California. The mother had also identified a local charter school as a possible elementary school for the child when he reached school age.

The mother also testified regarding the great number of aunts, uncles, cousins, and friends she and the child had in the Santa Ynez area. The mother stated that the extended-family members could provide support if she needed help with the child.

[946]*946The mother also testified that she has facilitated, and will continue to facilitate, the relationship between the child and the father. It is undisputed that the child speaks on the telephone daily with the parent who does not then have custody of him. The mother testified that she had proposed a custodial arrangement to allow the father visitation with the child if she were allowed to relocate with the child. Pursuant to that proposed agreement, the mother would have the child for four consecutive weeks and the father would have the child for two consecutive weeks. The mother explained that that arrangement would result in the father having only six fewer days per year with the child than he is afforded under the custody arrangement specified in the divorce judgment. The mother also stated that the father often visits California to see friends and family and that he could exercise additional visitation with the child during those times. In addition, the mother proposed that the father use the Internet to have video-telephone conversations with the child.

The parties presented evidence regarding the cost of flying from Alabama to California, and they agreed that an adult would have to fly with the child, who was two years old at the time of the hearing, when he traveled to and from California, thereby increasing the transportation costs. The mother stated that the child enjoyed flying on an airplane. The mother testified that the trip normally took five to six hours, including time for a layover.

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Cite This Page — Counsel Stack

Bluebook (online)
53 So. 3d 942, 2010 Ala. Civ. App. LEXIS 128, 2010 WL 1837780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knight-v-knight-alacivapp-2010.