McLendon v. McLendon

Decision Date01 February 1984
Citation455 So.2d 861
PartiesMr. and Mrs. W.R. McLENDON v. John William McLENDON and Ruby Ann McLendon. Civ. 3910.
CourtAlabama Court of Civil Appeals

Al Seale and Frances R. Niccolai of Seale, Marsal & Seale, Mobile, for appellant.

W.A. Kimbrough, Jr. of Turner, Onderdonk & Kimbrough, Mobile, for appellee.

WRIGHT, Presiding Judge.

This is a child custody case.

John William McLendon and Ruby Ann McLendon were divorced in the Circuit Court of Mobile County, Alabama, on November 19, 1980. Pursuant to an agreement of the parties, custody of the couple's minor daughter, Elizabeth Ann McLendon, was awarded to the paternal grandparents, Mr. and Mrs. W.R. McLendon, subject to each parent's right of visitation. The child remained with the grandparents until August 1982, at which time the natural mother picked the child up for visitation and returned with her to California, the mother's residence. The grandmother, after obtaining a California court order, regained custody of the child and petitioned the Circuit Court of Mobile County for a suspension of the mother's visitation rights and for reimbursement of her expenses in traveling to California to regain custody. The mother counterclaimed, seeking a modification granting her custody. After an ore tenus hearing, the court awarded custody to the mother subject to the grandparents' visitation rights. The grandparents filed a motion for reconsideration, which was denied. They appeal here, asserting that the trial court erred in awarding custody to the mother, that it abused its discretion in modifying the child custody provisions of the judgment of divorce, and that it improperly applied the law to the facts.

The grandparents contend that the trial court mistakenly believed that the recent case of Ex parte Berryhill, 410 So.2d 416 (Ala.), on remand, 410 So.2d 419 (Ala.Civ.App.1982), required that the natural mother be proved unfit in order to deny her custody. They assert that the trial court improperly applied this standard to the case at bar, thus imposing upon the grandparents the burden of proving the mother's unfitness.

This court of course cannot know what was in the mind of the trial judge during the trial nor at the time he rendered his judgment. We have read in the record the statements of the court relative to the opinion of the supreme court in Berryhill. We find nothing more shown thereby than a question of the meaning of that opinion. We all have questions in our mind as to the exact meaning and effect of many appellate court decisions. Our responsibility in this case extends only to determining whether the judgment rendered is sufficiently supported by legal evidence, is not contrary to law as we understand the law, and is not clearly wrong and unjust. We make our determinations keeping in mind the discretionary authority of the trial court and the presumption that its judgment is correct.

It is the opinion of this court that the decision in Berryhill espouses no new law. In fact, the primary statements in Berryhill are quotations from the case of Griggs v. Barnes, 262 Ala. 357, 78 So.2d 910 (1955). That case was decided nearly thirty years ago and cited to the case of Striplin v. Ware, 36 Ala. 87, 89, 90, written in 1860. Berryhill says that when a contest for custody of a child arises between a parent and a third person, the parent is deemed to have a superior claim to custody which should not be disturbed unless it plainly appears that the interest of the child requires it be set aside. We consider this to mean nothing more than that for...

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10 cases
  • McDermott v. Dougherty
    • United States
    • Maryland Court of Appeals
    • 10 March 2005
    ...neglect, or `exceptional circumstances.' See, e.g., C.G. v. C.G., 594 So.2d 147, 149 (Ala.Civ.App.1991) (quoting McLendon v. McLendon, 455 So.2d 861, 862 (Ala.Civ.App.1984)27) (requiring `clear and convincing evidence that the parent is unfit or unsuited for custody and that the best intere......
  • Smith v. Smith
    • United States
    • Alabama Court of Civil Appeals
    • 23 May 2003
    ...a material change in circumstances that justified the modification of custody of the child under the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). At the outset we note that, pursuant to the original divorce judgment, the mother was awarded physical custody of the child......
  • Ex parte Terry
    • United States
    • Alabama Supreme Court
    • 27 June 1986
    ...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 Re......
  • Bo.S. v. Be.S., 2180271
    • United States
    • Alabama Court of Civil Appeals
    • 23 August 2019
    ...custody of the children from them to the mother are contrary to principles of custodial repose most notably set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), and most recently applied by our supreme court in Ex parte D.B., 255 So. 3d 755 (Ala. 2017), because, the custodians say, t......
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