McGonagle v. McGonagle

218 So. 3d 1208, 2016 WL 2943680, 2016 Ala. Civ. App. LEXIS 134
CourtCourt of Civil Appeals of Alabama
DecidedMay 20, 2016
Docket2150136
StatusPublished
Cited by2 cases

This text of 218 So. 3d 1208 (McGonagle v. McGonagle) 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
McGonagle v. McGonagle, 218 So. 3d 1208, 2016 WL 2943680, 2016 Ala. Civ. App. LEXIS 134 (Ala. Ct. App. 2016).

Opinion

THOMAS, Judge.

Heather Maria McGonagle (“the mother”) 1 appeals from a judgment of the Baldwin Circuit Court awarding sole physical [1209]*1209custody2 of the parties’ child to Robert Allen McGonagle (“the father”). Because we determine that the circuit court lacked subject-matter jurisdiction to enter the judgment, we dismiss the appeal.

Background

The child was born on May 14, 2012. The mother and the father were divorced by a judgment of the circuit court in March 2013. The divorce judgment incorporated an agreement between the parties, in which they agreed that they would share joint legal custody of the child and that the mother would exercise sole physical custody of the ehild.

In April 2013, the father was deployed to Kyrgyzstan by the United States Air Force. He returned from his deployment in November 2013 and began to live in Fort Walton Beach, Florida. He testified that he lived by himself until March or April 2014, when he began to live with his girlfriend, LeeAnn. He and LeeAnn were married four months later. He continued to live in Fort Walton Beach until November 2014, when he moved to Eglin Air Force Base in Florida. He then moved to Houston, Texas, in June 2015.

The mother testified that she had left the marital residence in approximately August 2012, when she and the father separated, and had begun living with her parents in Foley, Alabama. She testified that, during that period, she and the child at least occasionally “stayed with” Roy Cruise. The location of Cruise’s residence is not clearly stated in the record, but it appears that it was located in Alabama. The mother stated that she had been engaged to many Cruise but that their relationship ended after four or five months. She testified that she and the child had begun living with Henry Centeno sometime “between late spring and summer” of 2013. When asked where Centeno lived, the mother testified: “Destín.... It’s in conjunction with Fort Walton.” The father testified that Centeno lived in Fort Walton Beach, Florida. The mother stated that she and the child had lived with Centeno for approximately nine months to one year and that she believed that their relationship had ended in late 2013.

The mother further testified that she began a relationship with Edward Arvizu in late January or early February 2014, but the father testified that she told him about her relationship with Arvizu a couple of weeks before he returned from his deployment in November 2013. The mother stated that she and the child had begun living with Arvizu in Crestview, Florida, when they began dating. The mother testified that she had dated Arvizu for approximately one month before they were married in March 2014. In April 2014, Arvizu was deployed to Afghanistan by the United States Army. The mother testified that her relationship with Arvizu had become troubled sometime during May or June 2014. Nevertheless, she and the child continued to stay in the marital residence while Arvizu was deployed. During that time, she and the child at least occasionally stayed with her friend, Jessica, at Jessica’s mother’s residence. The father testified that Jessica lived in Fort Walton Beach, Florida.

The mother testified that, toward the end of September 2014, she and the child began to live with Centeno again. Although the mother testified that Centeno had purchased a house since their previous separation, there was no evidence indicating that he had moved to Alabama from [1210]*1210Florida.. Arvizu returned from his-¡deployment in October 2014, and he and the mother1 were divorced around that time. The mother and Centeno were married in February 2015.

The mother provided the following testimony upon examination by the father’s attorney at the hearing:

“Q: All right. And I’m going to try— some of this, I’ve covered, I’m going to—bear with me for a minute. I’m going to try to get—So you went from Eglin Ah* Force base .with [the father], -right?
.“A: ¡Yes.
‘Q: To Foley, to [Centeno’s] in Destín, to [Arvizu’s] in Crestview, and back to Foley?
“A: Nope.
“Q: Okay. Didn’t—you went straight from [Arvizu’s] to [Centeno’s]?
“A: ' Yes.
“Q: And then mixed in there was some staying some time—
“A: I spent a lot of time with Jessica and her family.
“Q: Yes. And with Roy Cruise. You stay there a.lot?
“A: Yes, we stayed together—
“Q: Then you stayed with your family some in Foley, I suppose?
“A: Yes, I visit my family quite often. I- would 'say twice a week—or twice a month, I visit my family.
“Q: All right. You know, I believe that you—also in August 2014, which would have been about the time—just shortly before the time that you were struggling with where to go, you also went to Hawaii with another man, didn’t you?
“A: . That was in 2013,
“Q: That was in 2013?
“A: I believe so.
“Q: Okay.
“A: I can’t remember the exact year. But yes, I did fly out to Hawaii with a friend of mine.
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“Q: And you stayed with him for how long?
“A: A week.”

On November 12, 2014, the father petitioned the circuit court, seeking a modification of the custody arrangement set out in the divorce judgment. Among other things, the’ father alleged that “a material change in circumstances ha[d] occurred and it [wa]s in the best interest of the minor child that the father have ,.. sole [physical] custody.” He alleged that the mother’s lifestyle, specifically her decisions to live in multiple locations and to cohabit with men to whom she was not married, had prevented her from being able to provide a stable environment for the child.

Among other things, the father asked the circuit court to award him “legal and physical custody of the minor child or, in the alternative, that the joint custody continue with the father having [sole] physical custody.” The mother answered the father’s petition, admitting his allegations regarding the “ages; residences, marital status and children of the parties” and denying the other allegations made in his petition.

After discovery, the circuit court held a hearing on July 24, 2015. On July 28, 2015, the circuit court entered an order concluding that “the [m]other’s frequent home changes constitute a material issue of a continuing nature.” Among other things, the circuit court awarded the parties joint legal custody and awarded the father sole physical custody. The circuit court also ordered the parties to calculate child support and to submit the necessary forms within 14 days.

[1211]*1211In response to the circuit court’s order, the mother filed a motion, arguing, among other things, that the circuit court lacked jurisdiction to modify the custody arrangement and stating: “Both of the parties had lived in Florida for more than six months preceding the filing of this action.

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Cite This Page — Counsel Stack

Bluebook (online)
218 So. 3d 1208, 2016 WL 2943680, 2016 Ala. Civ. App. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgonagle-v-mcgonagle-alacivapp-2016.