Gilmore v. Gilmore, 103 So. 3d 833

Divorce Judgment (April 2009) awarded father custody and mother visitation as the parties could agree.
On January 10, 2012, mother filed a petition to modify custody alleging father limited visitation.
The trial court scheduled a February 2, 2012 hearing and mother sought pendente lite custody on alternating weeks pending merits.
Father opposed pendente lite request, filed answer and counterclaim seeking traditional/minimal visitation.
February 2, 2012 hearing occurred; March 5, 2012 the court entered final modification judgment granting joint custody with alternating weekly physical custody.
Father moved to clarify whether the March 5 judgment was final or pendente lite; court held it final; father appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether final merits judgment issued after pendente lite hearing violated due process	Gilmore argues due process requires merit adjudication, not final ruling on pendente lite hearing	Gilmore contends the court intended only pendente lite relief and later finality would follow	Trial court erred; reversed and remanded for merits adjudication

Amberson v. Long, 998 So.2d 1078 (Ala.Civ.App.2008) (distinguishes pendente lite from final custody awards)
Sims v. Sims, 515 So.2d 1 (Ala.Civ.App.1987) (pendente lite orders generally replace final orders at end of litigation)
S.S. v. T.R.A., 716 So.2d 719 (Ala.Civ.App.1998) (quotes on pendente lite vs. final custody awards)
Ex parte J.P., 641 So.2d 276 (Ala.1994) (discussion of due process in custody matters)
Strain v. Maloy, 83 So.3d 570 (Ala.Civ.App.2011) (due process in custody proceedings)
Danford v. Dupree, 272 Ala. 517 (1961) (due process requirements in custody cases)
Crews v. Houston Cnty. Dep’t of Pensions & Sec., 358 So.2d 451 (Ala.Civ.App.1978) (procedural due process — fair hearing protections)
M.G. v. J.T., 90 So.3d 762 (Ala.Civ.App.2012) (voids judgment for lack of service and opportunity to be heard)