Terry v. Terry

154 So. 3d 1002, 2013 WL 6516386
CourtSupreme Court of Alabama
DecidedDecember 13, 2013
Docket1120738
StatusPublished
Cited by1 cases

This text of 154 So. 3d 1002 (Terry v. Terry) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Terry v. Terry, 154 So. 3d 1002, 2013 WL 6516386 (Ala. 2013).

Opinions

STUART, Justice.

Adam G. Terry (“the father”) petitioned this Court for a writ of certiorari to review the judgment of the Court of Civil Appeals reversing an order of the Lawrence Circuit Court enjoining Emily Brackin Terry (“the mother”) from relocating from Lawrence County to Charleston, South Carolina, with their son (“the child”). See Terry v. Terry, 154 So.3d 993 (Ala.Civ.App.2013). We granted the father’s petition to consider whether the Court of Civil Appeals erred by reversing the trial .court’s judgment and directing the trial court to enter a judgment in favor of the mother. We affirm in part and reverse in part.

I.

The father and mother had a child together in May 2007; they were not married. Following a paternity action in the Lawrence Juvenile Court, the father and mother were awarded joint legal custody of the child, and the mother was awarded primary physical custody, subject to the father’s visitation. In January 2011, the mother became engaged to Joshua Terry, a fourth-year medical-school student.1 At that time, Joshua was applying for postgraduate residence programs. Although Joshua’s first choice was the University of [1004]*1004Alabama at Birmingham, on March 15, 2011, he was ultimately “matched” with a program at the Medical University of South Carolina in Charleston, South Carolina.2 The mother subsequently notified the father pursuant to the requirements of the Alabama Parent-Child Relationship Protection Act (“the Act”), § 30-3-160 et seq., Ala.Code 1975, that she intended to move with the child to Charleston. The father opposed the move and petitioned the trial court to enjoin the move or, in the alternative, to award him sole physical custody of the child. In June 2011, the mother and Joshua married, and the child was subsequently allowed to move to South Carolina with them while this action was pending.

An evidentiary hearing was thereafter held. At the outset of that hearing, the trial court stated that it was there to consider “the relocation matter,” a petition seeking “a modification of custody” filed by the father, and “various contempt charges that have been filed as well.” The trial court then stated:

“The Court also notes that pursuant to the [Alabama] Code, § 30-3-169.4,3 it’s the burden of [the mother] to rebut the presumption that the change of residence of the child ... is not in the child’s best interest. So we will proceed first with her testimony on that issue.”

The mother then proceeded to question the father, give her own testimony, and submit deposition testimony from Joshua. The Court of Civil Appeals summarized the evidence adduced by the mother as follows:

“At the hearing on the parties’ respective pleadings, the father, who was 27 years old at the time of the hearing, testified that he was single and lived in a house in Trinity, in Lawrence County, that had belonged to his grandparents. The father testified that he was in a relationship with a woman who lived in Mississippi, that he hoped to marry, but that he did not intend to move to Mississippi.
“The father worked for Naffco, a business that sells fire engines. His sales territory included north Alabama and all [1005]*1005of Mississippi and Tennessee. The father said that he traveled for work and estimated that he stayed out of town overnight between four and six nights a month. The father was also required to travel to Pennsylvania for work a few times each year.
“The mother testified that the child, [Joshua], and she lived in a gated community in a suburb of Charleston. At the time of trial, the child was four years old and attended a day care across the street from where the mother worked as a registered nurse for a gastroenterolo-gy center. The mother said she was never required to travel for work and that she was able to be home with the child every evening. She and [Joshua] both described their life in Charleston, saying that they had joined a church there and that the child had made friends in the area. The evidence indicated that the child did not attend church with the father. The mother testified regarding cultural and historical sites the child had visited in Charleston that were not available in Lawrence County, such as a children’s museum, an aquarium, Fort Sumter National Monument, and the USS Yorktown, a World War II aircraft carrier.
“The father said that he frequently spoke to the child on the telephone, but he complained that the mother was listening to the conversations by putting the father’s calls on the speakerphone. The mother testified that the child, who was four years old at the time, had learned to put the calls on the speakerphone after the mother allowed the child to talk to the father on the speakerphone as the child took a bath. The mother said that the child’s attention span for a ‘normal’ telephone conversation was ‘not that long1 and that the child would put the father’s calls on the speakerphone while he played. The mother said she did not intend to monitor the father’s conversations with the child, but she had become concerned when she overheard the father tell the child that South Carolina was not the child’s home. The mother said that, because they were living in South Carolina, she believed that South Carolina was the child’s home, and she did not believe the father’s comment was appropriate to tell a four-year-old child.
“Much of the testimony involved the parties’ inability to reach an agreement regarding a visitation schedule, who would be required to travel for visitation, and who would be responsible for the costs associated with travel. There has been more than one visitation schedule entered in this matter, and the parties have gone to mediation in an attempt to work out a schedule between them. That effort was unsuccessful. The mother testified that she had discussed visitation issues with her attorney, and she believed that she was abiding by the schedule that was currently in place.
“The father testified that he had continued to exercise his visitation after the child moved to South Carolina, and he acknowledged that, in fact, he was spending the same number of days with the child each month as he had before the child moved. The record also indicates that there had been conflict between the mother and the father when meeting to transfer the child, so the transfers have been carried out in public places, such as fast-food restaurants. The mother submitted a proposed visitation schedule that would provide the father with extended visitations around the holidays and during the summer. She also offered to let the father have additional visitations with the child in Charleston if the father visited there. [1006]*1006The father proposed a visitation schedule that would require the child to use Thanksgiving Day and Christmas Day as travel days between the parties’ residences. The mother objected to that proposal on the basis that it would not be in the child’s best interest.
“The father testified that he had taken vacations during the pendency of this litigation, but he had not traveled to South Carolina to see the child. The father said that he went to New Orleans when the University of Alabama played in the National Championship football game in January 2012, but he did not have a ticket to attend the game. The father also traveled to two away games to see Alabama play football.

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Related

Terry v. Terry
154 So. 3d 1013 (Court of Civil Appeals of Alabama, 2014)

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Bluebook (online)
154 So. 3d 1002, 2013 WL 6516386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-v-terry-ala-2013.