Gallant v. Gallant
Citation | 184 So.3d 387 |
Decision Date | 19 December 2014 |
Docket Number | 2130632. |
Parties | Matthew GALLANT v. Rebecca GALLANT. |
Court | Alabama Court of Civil Appeals |
Alabama Supreme Court 1140324.
Austin Burdick of Burdick Law Firm, Bessemer, for appellant.
Rebecca Herald (Gallant), pro se.
Matthew Gallant ("the father") appeals from a judgment of the Elmore Circuit Court ("the trial court"), which, among other things, denied his petition to modify the physical custody of the four children from his former marriage to Rebecca Gallant ("the mother"), denied his petition to find the mother in contempt, granted the mother's petition to modify legal custody and visitation, and ordered the father to maintain health insurance for the children's benefit. We affirm.
The background pertinent to the disposition of this appeal is as follows. The trial court entered a judgment divorcing the parties, and incorporating an agreement of the parties, on August 24, 2009. On May 5, 2012, the father filed a contempt petition alleging that the mother had violated various provisions of the divorce judgment. The mother counterclaimed for an order modifying the legal-custody and visitation provisions of the divorce judgment and, by amendment, for an order modifying the child-support provisions of the judgment and for a finding of contempt against the father for having violated various provisions of the divorce judgment. On November 13, 2012, the father amended his petition to request an order modifying the divorce judgment to award him sole physical custody of the children.
After the case was set for trial, the father filed a written objection to the use of the custody-modification standard enunciated in Ex parte McLendon, 455 So.2d 863 (Ala.1984), on the ground that applying that standard would violate his constitutional rights.1 The father subsequently filed a motion further arguing that the McLendon standard could not be applied to his custody-modification petition because, he said, that standard had been superseded by statute.
The trial court conducted an ore tenus hearing on February 11 and 12, 2014. On February 28, 2014, the trial court entered a final judgment, refusing to find either party in contempt, applying the McLendon standard, denying the father's custody-modification petition, granting the mother's petition to modify legal custody and visitation, and ordering the father to maintain health insurance for the children's benefit. The father timely moved to alter, amend, or vacate the judgment. The trial court denied the father's motion on April 12, 2014, after which the father timely appeal to this court.
The father raises five issues on appeal: (1) that the McLendon standard is unconstitutional, (2) that the McLendon standard has been superseded by statute, (3) that the trial court misinterpreted and misapplied the McLendon standard, (4) that the trial court erred in failing to find the mother in contempt, and (5) that the trial court erred in ordering him to maintain health insurance for the children's benefit.
The doctrine of res judicata provides that a final judgment entered by a court of competent jurisdiction binds the parties from relitigating the issues decided therein. See Hughes v. Martin, 533 So.2d 188 (Ala.1988). Applied strictly, that doctrine would prevent repeated litigation over the custody of a child; however, as early as 1858, our supreme court recognized that, because of the shifting nature of the needs of a growing child, a court of equity should be allowed to redetermine custody in appropriate cases. See Cornelius v. Cornelius, 31 Ala. 479 (1858). In keeping with the rationale behind the doctrine of res judicata, the supreme court decided that, in order to prevent "oft-repeated, harassing litigation over the custody of infants," a final child-custody determination, like any other judgment, could not be reopened for reconsideration of the correctness of the judgment. Sparkman v. Sparkman, 217 Ala. 41, 43, 114 So. 580, 581 (1927). It further held, however, that, if a party could satisfactorily prove that circumstances had changed in a significant way since the entry of the earlier judgment, the doctrine of res judicata would not preclude a new determination of child custody based on those changed circumstances. See Pearce v. Pearce, 136 Ala. 188, 190, 33 So. 883, 884 (1903). Hence, the law became that a prior custody judgment could be modified based only on a material change of circumstances. See Wren v. Stutts, 258 Ala. 421, 422, 63 So.2d 370, 371 (1953).
(Emphasis added.) The supreme court found that the above-emphasized language improperly limited the scope of the inquiry of a trial court considering a custody-modification petition and that the law more correctly provided that " ‘... the parent will not be permitted to reclaim the custody of the child, unless he can show that a change of the custody will materially promote his child's welfare.’ " Ford v. Ford, 293 Ala. 743, 744, 310 So.2d 234, 234 (1975) (quoting Greene, 249 Ala. at 157, 30 So.2d at 445, quoting in turn Stringfellow v. Somerville, 95 Va. 701, 707, 29 S.E. 685, 687 (1898) ).
The following year, Judge Bradley, writing for this court, summarized the burden of proof in a child-custody-modification proceeding as follows:
Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976). Afterwards, this court formulated other custody-modification standards, see Quintanilla v. George, 340 So.2d 804, 807 (Ala.Civ.App.1976) ; Roberson v. Roberson, 370 So.2d 1008, 1010 (Ala.Civ.App.1979) ; and Alford v. Alford, 368 So.2d 295, 297 (Ala.Civ.App.1979), all intended to encapsulate the various decisions on the matter by the supreme court, which this court must follow. See Ala.Code 1975, § 12–3–16.
455 So.2d at 866 (quoting Wood, 333 So.2d at 828 ).
Since Ex parte McLendon was decided in 1984, the supreme court has reiterated that the "McLendon standard" applies when deciding whether a provision in a divorce judgment awarding one parent sole physical custody of a child should be modified. See Ex parte Cleghorn, 993 So.2d 462, 467 (Ala.2008) ( ). However, the supreme court has clarified that the McLendon stan...
To continue reading
Request your trial-
Gordon v. Gordon
..."[T]he McLendon standard is not unconstitutional[, and] the McLendon standard has not been superseded by statute." Gallant v. Gallant, 184 So.3d 387, 405 (Ala. Civ. App. 2014). ...
-
S.M.M. v. J.D.K.
...standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), "does not govern ... visitation issues." Gallant v. Gallant, 184 So.3d 387, 400 (Ala.Civ.App.2014).3 In actuality, this court must review the evidence in a light most favorable to the prevailing party. See, e.g., Boyd v. Ott......
-
D.B. v. K.S.B. (Ex parte K.S.)
...reviews the interpretation and application of the McLendon standard, which involve pure questions of law, de novo. Gallant v. Gallant, 184 So.3d 387, 401 (Ala. Civ. App. 2014)."After a thorough review of the record, we agree with the grandparents that the Court of Civil Appeals' decision in......
-
Gallant v. Gallant (Ex parte Gallant)
...We deny the father's petition.Procedural History These parties have previously appeared before this court in Gallant v. Gallant, 184 So.3d 387 (Ala. Civ. App. 2014) ; Ex parte Gallant, 221 So.3d 1120 (Ala. Civ. App. 2016) (" Gallant II"); and Gallant v. Gallant, [Ms. 2151010, Feb. 17, 2017]......