184 So. 3d 387
Ala. Civ. App.2014Background
- Divorce judgment incorporating the parties’ agreement entered August 24, 2009; father seeks custody modification and other relief.
- Mother sought modifications to legal custody and visitation and, by amendment, child support; father amended to seek sole physical custody.
- Trial court held an ore tenus hearing February 11–12, 2014; issued final judgment February 28, 2014 denying contempt, denying father custody modification, granting mother legal custody and visitation modification, and ordering father to maintain health insurance.
- Father challenged the custody-modification standard (Ex parte McLendon) as unconstitutional and argued it was superseded by statute; trial court applied McLendon.
- On appeal, father argued (i) McLendon constitutional, (ii) superseded by statute, (iii) misapplication of McLendon, (iv) contempt finding error, (v) health-insurance order error.
- Court affirmed, holding McLendon constitutional, not superseded, and correctly applied; sustained mother’s modification of legal custody/visitation; affirmed health-insurance order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the McLendon standard constitutional? | Gallant contends McLendon is unconstitutional. | Gallant contends McLendon is a valid common-law standard. | McLendon constitutional. |
| Does the Alabama Act supersede McLendon? | Act supersedes McLendon. | Act does not supersede McLendon. | McLendon not superseded. |
| Did the trial court misapply the McLendon standard to custody modification? | Court misapplied McLendon to deny change of custody. | Court properly applied McLendon and weighed evidence. | No reversible error; proper application under McLendon. |
| Was there error in failing to find the mother in contempt? | Mother violated court orders; contempt warranted. | No specific order or proof of contempt; no error. | No contempt reversal. |
| Was ordering father to maintain health insurance error? | Health-insurance requirement improper. | Record supports health-insurance provision; pleadings not strictly followed. | Health-insurance order proper. |
Key Cases Cited
- Ex parte McLendon, 455 So.2d 863 (Ala. 1984) (establishes the sole-physical-custody modification burden)
- Ex parte Cleghorn, 993 So.2d 462 (Ala. 2008) (reiterates McLendon standard applicability)
- Ford v. Ford, 310 So.2d 230 (Ala. Civ. App. 1974) (changed-circumstances standard; precursor to McLendon formulation)
- Greene v. Greene, 30 So.2d 444 (Ala. 1947) (burden to show change of conditions for modification)
- Ex parte Couch, 521 So.2d 987 (Ala. 1988) (best-interests standard governs certain custody modifications)
- Cornelius v. Cornelius, 31 Ala. 479 (Ala. 1858) (early modification of custody based on changed circumstances)
- Ex parte Jenkins, 723 So.2d 649 (Ala. 1998) (separation of powers context in custody decisions)
- Ex parte E.R.G., 73 So.3d 634 (Ala. 2011) (fundamental rights in custody discuss priority between parents)