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Rel: 8/15/08

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ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2008

_________________________ 2060309 _________________________ Lisa M. Meadows v. Christopher G. Meadows Appeal from Shelby Circuit Court (DR-04-14) THOMAS, Judge. Lisa M. Meadows ("the mother") and Christopher G. Meadows ("the father") were married in September 2000. The parties

first met while the mother was enrolled in optometry school at the University of Alabama at Birmingham. After their

2060309 marriage, the parties lived in South Carolina. The mother was employed as an optometrist; the father was a pilot, originally for another company, and then for United Parcel Service ("UPS"). In August 2002, the parties moved from South

Carolina to Calera, Alabama.

At the time of the relocation,

the mother was pregnant with the couple's only child, who was born on November 28, 2002. The parties' relationship became strained after the birth of the child. The testimony in the record indicates that the

major issue between the parties regarding their marriage centered on the mother's enforcement of a nap ritual for the parties' child. The father complained that the mother was

extremely rigid about the child's nap and bedtime schedule and ritual. He said that she did not vary the schedule for family

events and that he felt that the rigid schedule interfered with his ability to enjoy time with his child. The mother

denied that the nap ritual was as strict as the father described. The mother also testified that the father was abusive. Although she admitted that he had never struck her, she did accuse him of grabbing her by the arms, pushing her, holding

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2060309 her down, dragging her by the wrist, and blocking her from leaving a room. She described him as a man who became furious

over small irritations, like her forgetting the dry cleaning or not having the house as clean as he would like. During his

rages, she said, he would yell and would become so enraged that he would shake. The mother also accused the father of The father

belittling or insulting her during arguments.

denied becoming furious or enraged, although he did admit that the parties argued and that he had said hurtful things to the mother. On January 4, 2004, the parties were to attend dinner at the father's parents' home. According to the mother, while

she was getting things ready to leave, the father became enraged over a travel DVD player that the mother's father had given to them as a Christmas present. In addition, said the

mother, the father became furious with her because he saw that she had purchased a couple of bottles of wine. The mother

testified that she telephoned the father's mother and that, as a result, the father ultimately left the marital residence; the mother said that he returned later with his mother to retrieve some of his belongings. The mother testified that

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2060309 the father told her when he left the marital residence a second time that he would be contacting an attorney. She said that the father telephoned her constantly that evening but she never answered. The father testified that he had telephoned

the mother several times to tell her that he had been angry when he had threatened to contact a lawyer and that he did not intend to do so. On January 5, 2004, the mother left the marital

residence, taking the child with her.

According to her

testimony, she intended to leave only temporarily, seeking shelter and solace However, at her parents' home in to Schaumberg, reside in

Illinois.

the

mother

continued

Schaumberg during a large part of the pendency of the divorce proceeding, which she instituted on January 8, 2004. In June

2004, the mother was awarded pendente lite custody of the child, and the father sought and received a court order instituting visitation with the child. The mother testified that the child was involved with his extended family in Illinois, including his maternal

grandparents and her two sisters and their children. She also noted that she had enrolled the child in several enrichment

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2060309 classes in the "Park District" and that she had taken the child to several activities suitable for a child his age. She

testified, however, that she did not assert that Schaumberg, Illinois, was a better city in which to raise children than was the area surrounding Birmingham, Alabama. During the summer months of 2004, the father visited the child fairly regularly in Illinois. did not always run smoothly. However, the visitation

The father complained that no

one in the mother's family was willing to meet him at the airport in Chicago with the child, so he was required to rent an automobile and drive to Schaumberg. In addition, he

complained that the mother refused to give him the child's child-safety seat and that he was required to rent one for his use during the visits. The father explained that a two-day

visit required him to be either traveling or in Illinois for four days. The costs of the visits, according to the father,

ranged from $500 to $700. After hearing two days of testimony in late May 2005, the trial court divorced the parties and reserved the issues of custody, visitation, and child support. After the conclusion

of the testimony in late September 2005, the trial court, on

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2060309 December 20, 2005, entered a judgment awarding the parties joint legal custody of the child and awarding the mother physical custody of the child, provided that she relocate to Alabama. Specifically, the judgment stated:

"Based upon the evidence submitted, the Court finds that it is in the best interests of the minor child ... that his care, custody and control be shared by the parties. The child shall primarily reside with the [mother] subject to the [mother's] relocation to the state of Alabama within sixty (60) days from the date of this Order. Said relocation shall be a distance within sixty (60) miles of the child's previous address in Calera, Alabama, preferably in North Shelby County or South Jefferson County in order to facilitate the parties' custodial periods and the scheduling of activities revolving around the child, and because of the quality of the area school systems. In the event the [mother] fails to relocate to the state of Alabama within sixty (60 days) from the date hereof, then the child's primary residence shall be with the [father]." On January 5, 2006, the mother filed a postjudgment motion, on which the trial court held a hearing on February 28, 2006. After that date, but before the ruling on the

motion, the trial judge's wife had a conversation with the father and an attorney friend on March 14, 2006; the trial judge notified the parties of this contact. The mother then

filed a motion seeking the trial judge's recusal, which he granted.

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2060309 On May 12, 2006, the mother filed a motion pursuant to Rule 60(b), Ala. R. Civ. P., seeking to have the December 2005 judgment set aside. The newly assigned trial judge granted

the motion and entered the December 2005 order as a pendente lite order. In May 2006, the mother relocated to Alabama The trial court set a trial for

pursuant to that order. August 2006. During the next

few

months,

the

father

enjoyed

significantly increased visitation periods with the child. The testimony from the father and the child's paternal

grandmother indicated that the child was insecure around them during the early visitations but that he was much improved by the time of the second trial, which was ultimately held in October 2006. The father described the child, who was

approximately three and a half at the time, as lacking in speech and motor skills when he returned to Alabama.

Specifically, the father complained that the child did not interact well with other children and that he appeared to be used to having his decisions made for him. The father also

noted that the child persistently asked to be carried or picked up instead of walking or climbing up stairs himself.

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2060309 The father said that he began giving the child a simple choice between two options and requiring the answers "yes, sir," or "no, sir," to foster the child's verbal interaction and that he fostered the child's independence by making him walk and climb himself. The paternal grandmother echoed a few of the

father's observations, indicating that the child had improved in his emotional security, that he was interacting well with other children, and that he was more outgoing and active than when he first returned to Alabama. The child is enrolled in preschool in Birmingham. He is

also enrolled in other enrichment programs commensurate with his age, including a gymnastics class and computer class, both offered through his preschool. The father takes advantage of

opportunities to visit the preschool to read to the child's class and to eat lunch with the child. The father had also

presented a scuba-diving demonstration to the child's class during a week when the children were studying the ocean. The child has established a relationship with his

paternal grandparents.

In addition, the father's brother and

his family, which includes a three-year-old girl and infant

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2060309 twin daughters, have included the child in family events. The child plays well with his three-year-old cousin. After two days of testimony in October 2006 and a review of the transcript of the original trial, the trial court entered a judgment on December 29, 2006, awarding physical custody to the mother, provided that she continue to live within 60 miles of Shelby County. The custody provision in

the judgment reads, in part, as follows: "Based upon the evidence submitted, the Court finds that it is in the best interests of the minor child, ... that his care, custody and control be shared by the parties. The child shall primarily reside with [the mother], subject to [the mother's] residing within sixty(60) miles of Shelby County, Alabama. [The father] shall be awarded custodial periods as set out below. The location of the child near [the father] will facilitate the parties' custodial periods and the scheduling of activities revolving around the child. ".... "The Court finds that both parents have a substantial relationship with the minor child and appear to be loving and supportive parents. Both parents are very articulate and intelligent, but bring very different strengths and weaknesses to their job of parenting this child. The child will greatly benefit from having regular involvement with both parents. To allow [the mother] to remove the child to Schaumburg, Illinois would not promote the best interest of the child, because it would prevent the child from having regular contact with his father. [The mother] apparently has a very
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2060309 supportive and involved family in Schaumburg, Illinois, and while it might be beneficial to [the mother] to move to Illinois, any benefit to [the mother] would be outweighed by the detriment of removing the child from the many supportive relationships and contacts that he has in Alabama." The mother appeals that judgment. She argues that the

territorial restriction imposed by the trial court is an impermissible infringement of her right to travel, as secured by Article IV,

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