Ex parte Terry
Decision Date | 27 June 1986 |
Citation | 494 So.2d 628 |
Parties | Ex parte Jonathan M. TERRY. (Re Jonathan M. TERRY v. Eddie L. SWEAT). 85-466. |
Court | Alabama Supreme Court |
Edwin L. Yates, Montgomery, for petitioner.
Charles M. Law of Smith, Cruse & Law, Montgomery, for respondent.
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
Petitioner, Jonathan M. Terry, and his ex-wife were divorced in South Carolina in May 1984. By the terms of the divorce decree, custody of their 18-month-old daughter, Candance Terry, was awarded to the mother with liberal visitation privileges granted to petitioner, the father. Subsequently, mother and daughter moved back to Alabama, living initially with respondent, Eddie L. Sweat, the mother's father, and Mrs. Sweat, her stepmother. Following an unsatisfactory attempt to live independently in an apartment with her daughter, the child's mother returned the child to the home of her father and stepmother, thus transferring physical custody of the child to the Sweats.
A few months later, respondent, the grandfather, petitioned for modification of the South Carolina custody decree, seeking temporary legal custody of his granddaughter Candance. The child's mother did not oppose the petition; however, petitioner, the child's father, also filed a petition for modification seeking legal custody of his daughter.
Following an ore tenus hearing, the trial court entered an order finding that "the best interests of the child would presently be served by continuing her custody in the Maternal Grandfather." The trial court rejected the father's contention that the presumption in favor of the parent should be applied in this case. A majority of the Court of Civil Appeals affirmed, holding that the presumption in favor of a parent over a nonparent "does not apply when the non-custodial parent seeks modification of a prior custody decree." The Court of Civil Appeals cited this Court's opinion in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and also relied on two of its own cases: Sasser v. Thompson, 457 So.2d 422 (Ala.Civ.App.1984), and Lewis v. Douglass, 440 So.2d 1073 (Ala.Civ.App.1983).
Rehearing was denied by the Court of Civil Appeals, and Jonathan Terry petitioned this Court for a writ of certiorari. We granted the writ under A.R.A.P., Rule 39(c)(4), to consider the applicability of this Court's opinion in Ex parte McLendon, supra, to the issue presented by the present case. That issue is whether a father, who was not awarded custody by a prior divorce decree, but who has not been found to be unfit, has thereby lost his prima facie right of custody in a subsequent custody proceeding as against the rights of a nonparent (the maternal grandfather) with whom the mother, who was awarded custody by the divorce decree, has placed physical custody of the child.
In Ex parte McLendon, supra, at 865, this Court followed the case of Ex parte Mathews, 428 So.2d 58 (Ala.1983), among others, and stated:
(Emphasis added.)
The facts in Ex parte McLendon were that the parents of the child were divorced, and, by an agreement made a part of the divorce decree, custody of the minor child was awarded to the paternal grandparents, who had already been caring for the child. The mother later petitioned to modify that decree, seeking custody of the child. The trial court granted the mother's petition, and the Court of Civil Appeals affirmed. McLendon v. McLendon, 455 So.2d 861 (Ala.Civ.App.1984). In affirming, the Court of Civil Appeals distinguished this Court's opinion in Ex parte Berryhill, 410 So.2d 416 (Ala.1982):
(Emphasis added.) 455 So.2d 862-63.
With respect to the rights of the mother, this Court, on certiorari, also distinguished McLendon from Ex parte Berryhill, 410 So.2d 416 (Ala.1982), noting that the Court of Civil Appeals' interpretation of Berryhill was correct:
"Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947), quoting the Supreme Court of Virginia, Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687, 40 L.R.A. 623 (1898)." (Emphasis added.) Ex parte McLendon, 455 So.2d at 865.
Unlike Ex parte McLendon, where the prior decree awarded custody to a nonparent, the case of Ex parte Berryhill, like the present case, involved a prior decree awarding custody to the other parent. Although similar to Ex parte McLendon in that the contest here is between a parent and grandparents, we find the present case to be more factually similar to Ex parte Berryhill (and others discussed ante), even though there the right of custody was between the noncustodial parent and a stepparent.
In Ex parte Berryhill, the parents divorced, and by the divorce decree, custody of their 10-year-old son was awarded to the mother. The mother subsequently remarried and divorced again, but resumed living with her second husband, the boy's stepfather, until her death. Following the mother's death, both the noncustodial father and the stepfather sought custody of the boy. The Court of Civil Appeals affirmed the grant of custody to the stepfather. This Court reversed, holding that the Court of Civil Appeals "utilized the wrong test of parental qualification for custody of a minor child by its natural parent." 410 So.2d at 417. This Court went on to state the presumption in favor of a natural parent:
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