192 So. 3d 1165
Ala. Civ. App.2015Background
- Parties divorced in 2010; settlement provided joint legal and physical custody, father had final decision-making for daycare/academic matters, and intent that both remain in north Bibb County so children attend local schools and paternal grandparents provide daycare.
- Mother moved (post-divorce) to Tuscaloosa County (<10 miles) and later remarried; she worked in Calera (Shelby County) and sought to relocate to Shelby County to be nearer her job and to enroll the children in that school system.
- Mother filed to modify custody in Nov. 2012 seeking sole custody and child support (.01 action); father filed a competing petition in Jan. 2013 seeking sole custody (.02 action); the actions were consolidated and tried in 2014.
- At trial both parties agreed the children were thriving under the joint-custody arrangement; mother had not yet purchased a Shelby County home or identified specific schools; father testified he wanted children to remain in Woodstock but might move if necessary to preserve joint custody.
- Trial court entered identical judgments awarding the father primary living arrangements during the school term if the mother moved outside the general Bibb County area; later amended to apply only if the move actually prevented continued custody/school arrangements; mother appealed.
Issues
| Issue | Bird's Argument | Bandy's Argument | Held |
|---|---|---|---|
| Whether trial court should award mother sole legal and physical custody / allow school changes | Mother sought sole custody to relocate children to Shelby County schools | Father sought sole custody if mother relocated, arguing children should remain in current schools and community | Trial court: custody and educational arrangements should remain joint; no abuse of discretion in refusing sole custody for mother |
| Whether trial court may include an automatic custodial reversion clause tied to mother’s future relocation | Mother argued such prospective automatic change is improper and speculative | Father supported change to vest primary school-term custody in him if mother moved out of area | Court reversed: automatic future-change (custodial reversionary) clauses are impermissible and speculative; remanded to vacate them |
| Whether legal-custody (education decision) could be modified without material change | Mother claimed change justified by proposed relocation | Father opposed absent material change and argued children were thriving | Court: modification requires material change and best-interest showing; no material change shown, so legal custody remained joint |
| Whether ancillary awards (child support, expense-splitting, attorney fees) tied to reversed custody change must be reconsidered | Mother argued these awards were premised on the now-reversed custody clause | Father argued awards were proper | Court instructed trial court on remand to reconsider those awards because they were at least partly based on the invalid custodial reversion clause |
Key Cases Cited
- Ex parte Johnson, 673 So.2d 410 (Ala. 1994) (best-interests standard applies in custody-modification proceedings)
- Ex parte Couch, 521 So.2d 987 (Ala. 1988) (same custody-modification standard precedent)
- Nave v. Nave, 942 So.2d 372 (Ala. Civ. App. 2005) (modification requires material change and best-interest showing)
- Means v. Means, 512 So.2d 1386 (Ala. Civ. App. 1987) (same standard for modifying custody)
- Ex parte Blackstock, 47 So.3d 801 (Ala. 2009) (describing modification standard for prior joint custody)
- Gallant v. Gallant, 184 So.3d 387 (Ala. Civ. App. 2014) (legal custody including educational decision-making requires material change to modify)
- Hovater v. Hovater, 577 So.2d 461 (Ala. Civ. App. 1990) (custodial reversionary clauses that automatically change custody on future events are invalid)
- Korn v. Korn, 867 So.2d 338 (Ala. Civ. App. 2003) (trial court abused discretion by ordering automatic custody change based on future relocation)