Rel: February 13, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2025-2026 _________________________
CL-2025-0643 _________________________
Arundhati Sawant
v.
Gurudatta Anand Naik
Appeal from Jefferson Circuit Court (DR-19-901807.01)
EDWARDS, Judge.
Arundhati Sawant ("the former wife") appeals from a judgment
entered by the Jefferson Circuit Court ("the trial court") that awarded
Gurudatta Anand Naik ("the former husband") physical custody of the
parties' child, A.G.N. ("the child"), who was born on August 26, 2019, and CL-2025-0643
found the former wife in contempt of a September 2021 divorce judgment
entered by the trial court. We affirm the trial court's judgment.
Procedural Background
On September 7, 2021, the trial court entered a judgment divorcing
the former husband and the former wife; that judgment incorporated a
settlement agreement entered between the parties. Pursuant to the
divorce judgment, the former husband and the former wife were awarded
joint legal custody of the child, with the former wife exercising "primary
physical custody" of the child,1 subject to the former husband's visitation,
which was to occur on the first, third, and fifth weekends of each month,
as well as on specified holidays and during the summertime. The divorce
judgment also contained the child-custody language required by Ala.
Code 1975, § 30-3-166, which is a part of the Alabama Parent-Child
Relationship Protection Act ("the Act"), Ala. Code 1975, § 30-3-160 et seq.
In April 2025, the former wife, pursuant to the Act, provided the
former husband with written notice of her intent to relocate with the
1"Such an award is properly termed an award of 'sole physical custody' of a child. § 30-3-151(5), Ala. Code 1975." Ja.T. v. N.T., 353 So. 3d 558, 559 n.1 (Ala. Civ. App. 2021).
2 CL-2025-0643
child to Jackson, Mississippi, effective June 10, 2025. See Ala. Code
1975, § 30-3-163 (providing that a person who has the right to establish
the principal residence of a child shall provide notice to every other
person entitled to custody of or visitation with the child of a proposed
change of the child's principal residence). On April 23, 2025, the former
husband filed a complaint in the trial court objecting to the relocation of
the principal residence of the child. See Ala. Code 1975, § 30-3-169
(providing that "[t]he person entitled to determine the principal residence
of a child may change the principal residence of a child after providing
notice as provided herein unless a person entitled to notice files a
proceeding seeking a temporary or permanent order to prevent the
change of principal residence of a child within 30 days after receipt of
such notice"). The former husband's complaint also sought to modify the
physical custody of the child and to hold the former wife in contempt
because of her alleged violations of various provisions of the divorce
judgment.
On May 14, 2025, the former wife filed a response to the former
husband's complaint in which she confirmed her intent to relocate with
the child to Jackson. The former wife denied all other allegations made
3 CL-2025-0643
by the former husband in his complaint. On May 28, 2025, the trial court
entered a pendente lite order that incorporated a temporary agreement
of the parties. Pursuant to the pendente lite order, the former wife was
temporarily restrained from changing the child's principal residence.
The pendente lite order further temporarily modified the parties'
custodial times with the child such that the former husband and the
former wife would exercise alternating custodial periods every two
weeks.
A trial on the former husband's complaint was conducted on July
23, 2025. On July 24, 2025, the trial court entered a judgment that, in
pertinent part, awarded the former husband "primary legal and physical
custody of the child";2 awarded the former wife "secondary custody" of the
child; awarded the former wife visitation with the child to occur on the
first, third, and fifth weekends of each month, as well as on specified
holidays and during the summer; held the former wife in contempt of
court for "failing to allow the [former husband] to exercise his 5th
weekend visitation as court-ordered"; and denied all other requested
relief. The judgment did not contain any findings of fact but stated
2See note 1, supra.
4 CL-2025-0643
expressly that the former husband had established "[t]hat there has been
a material change in circumstances so substantial that the welfare and
best interest of the child would be promoted by a modification offsetting
the disruptive effect of uprooting the child."
On August 8, 2025, the former wife filed a timely notice of appeal
to this court. On August 11, 2025, the former husband filed a
postjudgment motion, pursuant to Rule 59, Ala. R. Civ. P., requesting
that the trial court amend its judgment to allow him to claim the child as
a dependent for state- and federal-income-tax purposes. The former
wife's appeal was held in abeyance until November 9, 2025, when the
former husband's postjudgment motion was denied by operation of law.
See Rule 59.1, Ala. R. Civ. P.; Rule 4(a)(5), Ala. R. App. P.
The Evidence
The former husband, who hails from India, testified that he had
resided in the Birmingham area for approximately 17 years, with Hoover
having been his home for approximately the last 9 of those years. At the
time of the trial, the former husband was employed as a "Scientist 1" by
the University of Alabama at Birmingham ("UAB"). Since 2020, he had
worked remotely from home five days a week. In addition to his work
5 CL-2025-0643
obligations, the former husband was a student at UAB, where he was
pursuing his Ph.D. in health-services research. He expected to graduate
in December 2025. According to the former husband, his work and
educational obligations had not prohibited him from exercising the
visitation with the child that he had been awarded in the parties' divorce
The former husband and the child enjoyed various activities during
their time together. The child had toys and books at the former
husband's house for days that inclement weather prohibited outdoor
activities. When weather permitted, they visited parks and engaged in
other outdoor activities, such as visiting the Birmingham Zoo.
The former husband remarried shortly before the trial, and he and
his current wife moved into a five-bedroom, two-and-one-half-bath house
approximately one month before the trial. The former husband said that
he had introduced the child to his current wife in August 2024 and that
the child and his current wife had developed a good relationship since
their introduction. His current wife did not have children of her own.
The former husband testified that the former wife, who also hails
from India, had engaged in a pattern of denying him the fifth-weekend
6 CL-2025-0643
visitation that he had been awarded in the September 2021 divorce
judgment. According to the former husband, in 2021, 2022, and 2023, he
had requested to visit with the child on the fifth weekend of those months
that had a fifth weekend, but, he said, those requests had been largely
denied by the former wife. The former husband estimated that, during
that two-plus-year period, of the months that had fifth weekends, he had
visited with the child approximately three times.
The former husband and the former wife struggled to come to a
consensus on decisions regarding the child's education. Regarding the
selection of the school that the child would attend, the former husband
said that he had wanted the child to attend public school but that the
former wife had preferred that the child attend a private school.
According to the former husband, he and the former wife had participated
in an interview at Highlands School, a private school located in Irondale,
but, he said, they both had agreed that travel to that campus would be
inconvenient because of the length of the drive.
Thereafter, the former wife informed the former husband that she
was also considering Prince of Peace, a private Catholic school, and that
she intended to tour that school's campus. The former husband testified
7 CL-2025-0643
that he had informed the former wife that he would be unable to join her
in touring that campus. According to the former husband, approximately
one month later, the former wife had informed him that the child was
starting school at Prince of Peace the following day.
The former husband testified that the former wife had failed to
consult with him in any meaningful manner before she unilaterally
selected which school the child would attend. The former husband
testified that he objected to the child's attending Prince of Peace because
he had concerns that the school was "faith based" and was "not diverse
enough." He also said that he was concerned about the cost of the school,
which, he said, the former wife had never discussed with him. At the
time of the trial, the child was scheduled to begin his second year at
Prince of Peace in the fall of 2025. The former husband testified that he
had the flexibility to transport the child to and from school.
In April 2025, the former wife provided the former husband with
written notification of her intent to relocate, along with the child, to
Jackson, Mississippi. In her notice, the former wife, who was a medical
student pursuing her M.D., indicated that her proposed relocation was
due to her having been assigned to a medical-residency program at the
8 CL-2025-0643
Mississippi Baptist Memorial Hospital in Jackson. According to the
former husband, Jackson is located approximately 250 miles from his
residence. He estimated that it takes him approximately three and one-
half hours to drive to the former wife's residence in Mississippi if he is
unaccompanied by the child. If accompanied by the child, the former
husband estimated that the drive time increases by one and one-half
hours to account for necessary travel breaks.
The former husband objected to the child's relocation to Jackson
and opined that the proposed relocation was not in the child's best
interest. He expressed concerns about the former wife's ability to parent
the child considering the obligations of her medical residency. The
former husband said that medical-residency programs obligate
individuals to be on-call for 12-hour periods and to work in rotations,
which include overnight shifts as well as weekend shifts. According to
the former husband, in addition to the work-schedule rotations, medical-
residency participants are subject to board exams, which, he said, further
obligate residency participants to time for studying for those exams. The
former husband testified that the former wife did not have family in
Jackson and that he was not aware of any other support network that
9 CL-2025-0643
the former wife might have in that area. By contrast, the former husband
said that Birmingham has a large Indian community that can provide
the child with a cultural connection to his heritage. Also, the former
husband opined that the child would benefit if the child remained in the
Birmingham area because the child could maintain his relationships
with his friends.
Both the former husband and the former wife are immigrants to
this country. The former husband said that he has a "green card" that
allows him to stay in this country legally. He further testified that his
immigration status is not dependent upon his maintaining employment.
The former husband said that he will be eligible for United States
citizenship in 2026.
At the time of the entry of the September 2021 divorce judgment,
the former wife was in the United States on an H1 visa, which, according
to the former husband, was a work permit that allowed the former wife
to legally work in this country. However, the former husband said that
the former wife had informed him that she was working under a J1 visa
with her current employer. A J1 visa, according to the former husband,
is a training visa that is mainly used for scholars and students who come
10 CL-2025-0643
to this country to study. The significance of the J1 visa, according to the
former husband, is that the former wife would "by default" have to leave
this country for two years after she finishes her residency program in
Jackson. On cross-examination, the former husband was presented with
a copy of the former wife's green card. He conceded that his concerns
regarding her immigration status were alleviated by that information.
The former wife testified that the residency-matching program is a
confidential process pursuant to which a residency program and a
candidate are matched. Neither the residency program nor the candidate
has any control over the selection process other than the candidate's
having listed his or her preferred geographic location during the process.
The former wife said that she had requested to complete her residency in
Birmingham, but, she said, that request was not honored. According to
the former wife, her only match was in Jackson.
The former wife disputed the former husband's testimony regarding
the time obligations her residency would require. The former wife's work
hours for the first year of her residency, which she said were outlined in
her employment contract, obligated her to work Monday through Friday
11 CL-2025-0643
from 7:00 a.m. until 5:00 p.m.3 She denied that her work requirements
obligated her to work later than 5:00 p.m. She also denied that she would
be obligated to work weekends for the first year of her residency. She,
however, admitted that she was unaware of what her work schedule
would be in the second and third years of her residency. The former wife
opined that the continuation of her education would be in the best
interest of the child. She testified that, upon the completion of her
residency program, she would become a medical doctor and that the
income she would receive as a medical doctor would provide her with the
financial resources to elevate the child's standard of living and to pay for
his education.
Regarding the former husband's visitation with the child, the
former wife refuted the former husband's testimony indicating that he
had been denied his fifth-weekend visitations with the child. She
conceded that she and the former husband had experienced some
disagreements about the fifth-weekend visitations, but, she said, during
2021, she either had allowed those visits to occur as ordered or had
3The former wife did not introduce her employment contact as an
exhibit to substantiate her assertions. 12 CL-2025-0643
agreed to makeup visitation to occur at a later date. The former wife also
denied the former husband's assertion that she had unilaterally enrolled
the child at Prince of Peace. She testified that she and the former
husband had engaged in multiple discussions about Prince of Peace. She,
however, conceded that the former husband had objected to the child's
attending Prince of Peace because the school is faith-based.
Regarding the former husband's complaint seeking a modification
of the child's custody, the former wife opined that it would be harmful or
would cause a disruption to the child if he were to be removed from her
physical care. To support her assertion, the former wife observed that
she had been the child's primary caregiver since his birth, that she had
provided for the child's schooling, that she had provided for his daycare,
that she had established the child's eating habits as well as his sleeping
habits, that she had assisted with the child's homework, and that she had
provided for the child's extracurricular activities. She also expressed
concern that removing the child from her physical care would disrupt the
child's stability and would result in the child's experiencing confusion
from no longer residing in her home.
13 CL-2025-0643
At the time of the trial, the former wife, along with her parents ("the
maternal grandparents"), were residing in a three-bedroom single-family
home in Jackson. According to the former wife, the maternal
grandparents could provide assistance in caring for the child, but, she
said, they do not transport the child in an automobile. The neighborhood
that the former wife and the maternal grandparents were residing in at
the time of the trial has a community swimming pool, as well as a
playground. According to the former wife, the child had made friends in
the neighborhood.
Discussion
On appeal, the former wife makes arguments directed to those
portions of the trial court's judgment modifying the child's custody as well
as finding her in contempt. Regarding the modification of the child's
custody, the former wife argues that the trial court erred in awarding the
former husband physical custody of the child because, she says, the trial
court failed to apply the factors set forth in Ala. Code 1975, § 30-3-169.3,
which is part of the Act, and because, she says, the former husband failed
to present evidence sufficient to meet the standard set forth in Ex parte
McLendon, 455 So. 2d 863 (Ala. 1984) (requiring that the movant prove,
14 CL-2025-0643
in addition to a material change of circumstances, that the child's best
interest will be materially promoted by a change of custody and that the
benefits of the change will more than offset the inherently disruptive
effects resulting from the change of custody). See Clements v. Clements,
906 So. 2d 952 (Ala. Civ. App. 2005).
We initially note that the former wife's contention that the trial
court failed to apply the factors set forth in § 30-3-169.3 was not raised
in the trial court. "This court cannot consider arguments raised for the
first time on appeal. Our review is restricted to the evidence and the
arguments considered by the trial court." S.K. v. Madison Cnty. Dep't of
Hum. Res., 990 So. 2d 887, 895 (Ala. Civ. App. 2008). We further note
that because the trial court did not allow a change of the child's principal
residence, the factors set forth in § 30-3-169.3 are inapplicable. See
Henderson v. Henderson, 978 So. 2d 36, 41-42 (Ala. Civ. App. 2007)
(determining that § 30-3-169.3 only requires the trial court to consider
those factors when determining whether a change of the principal
residence should cause a change in custody). Thus, we decline to consider
the former wife's arguments on this issue.
15 CL-2025-0643
Regarding the former wife's contention that the former husband
failed to present sufficient evidence to meet the standard set forth in Ex
parte McLendon, we note that, in her brief to this court, the former wife
concedes that, in its judgment, the trial court "did not make specific
findings of fact." The former wife's brief, p. 25. In New Properties, L.L.C.
v. Stewart, 905 So. 2d 797, 801-02 (Ala. 2004), our supreme court held
that,
"in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review."
More recently, this court has had occasion to consider the
application of New Properties and to decide whether certain judgments
contained sufficient findings of fact such that the filing of a postjudgment
motion was not necessary to preserve a challenge to the sufficiency of the
evidence supporting the judgment. See K.M. v. S.R., 326 So. 3d 1062
(Ala. Civ. App. 2020).
In K.M., the judgment at issue was a juvenile court's judgment
finding a child to be a dependent child. 326 So. 3d at 1063. Although the
juvenile court's judgment determined that the child was a dependent
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child, that judgment did not make specific findings regarding the
circumstances giving rise to the child's dependency. Id. We explained
that "a mere adjudication of dependency does not equate to a specific
finding of fact that will excuse the filing of a postjudgment motion raising
the issue of the sufficiency of the evidence to support the finding of
dependency." Id. at 1064. We have since reiterated that, consistent with
New Properties,
"when a juvenile court makes the legal determination in a final judgment that a child is dependent, without further specifying the factual grounds for that determination, a party claiming that the dependency determination is not supported by sufficient evidence must file a postjudgment motion raising that issue to the juvenile court in order to preserve the issue for appellate review."
A.R. v. T.R., 375 So. 3d 1259, 1262 (Ala. Civ. App. 2022).
However, we have not always applied the principle set out in New
Properties consistently. In Adams v. Adams, 21 So. 3d 1247 (Ala. Civ.
App. 2009), this court considered the application of New Properties to a
child-custody judgment that contained language similar to the language
used by the trial court in the judgment entered in the present case. Like
the present case, Adams concerned postdivorce litigation between two
parents. The mother in Adams petitioned to modify the parties' divorce
17 CL-2025-0643
judgment, and the father counterclaimed, seeking custody of the parties'
children and other relief. 21 So. 3d at 1248. Following ore tenus
proceedings, the Elmore Circuit Court entered a judgment that, among
other things, awarded sole physical custody of the children to the father.
21 So. 3d at 1249.
The judgment at issue in Adams provided:
" 'The [c]ourt heard numerous witnesses and observed their demeanor and also received documentary evidence. The [c]ourt finds that the [mother's] testimony was not credible. The [c]ourt further finds that domestic violence was committed by both parties during the marriage. Thus, any presumptions against either party created by the domestic violence statutes (§[§] 30-3-130 through -136, Ala. Code 1975) cancel each other out so that no presumption either against the [mother] or against the [father] is in place or if in place offset each other.
" 'The [c]ourt finds that there has been a material and substantial change of circumstances since the final [divorce judgment], and that the positive good brought about by a change of custody will more than offset any disruptive effect caused by the change in custody. The [c]ourt thus finds that the [father] has met his burden of proof under the McLendon standard.' "
21 So. 3d at 1252 (footnote omitted). A majority of this court concluded
that the above-quoted portion of the Elmore Circuit Court's judgment
"contain[ed] sufficient factual findings to render unnecessary the filing of
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a postjudgment motion challenging the sufficiency of the evidence
pertaining to the custody modification." 21 So. 3d at 1253.
In a special writing dissenting to the rationale in the majority
opinion addressing the sufficiency-of-the-evidence argument, Judge
Thomas stated:
"The main opinion holds that New Properties is inapplicable and, therefore, that no postjudgment motion challenging the sufficiency or weight of the evidence was necessary in this case because, it concludes, the trial court did make specific findings of fact with respect to whether the father met his burden of proof under the McLendon standard. According to the main opinion, those findings of fact were (1) that the mother's testimony was not credible; (2) that both parties committed domestic violence during the marriage but that any presumptions against either party arising from the domestic-violence statutes cancel each other out; and
"(3) 'that there has been a material and substantial change of circumstances since the final [divorce judgment], and that the positive good brought about by a change of custody will more than offset any disruptive effect caused by the change in custody. The Court thus finds that the [father] has met his burden of proof under the McLendon standard.' "
21 So. 3d at 1257 (Thomas, J., concurring in the judgment but dissenting
from the rationale in part). Judge Thomas opined that "[i]tems (1) and
(2) do constitute 'findings of fact,' but neither is responsive to the
sufficiency issue that the mother raises on appeal. Accordingly, items (1)
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and (2) are not 'specific findings of fact' within the meaning of New
Properties." Id. Regarding item (3), Judge Thomas surmised:
"Item (3) -- which is a mere recitation of the McLendon standard and a statement that the father had met his burden of proof under McLendon -- is not a finding of fact, but a legal conclusion representing an application of the law to the facts, or a holding -- that the party with the burden of proof had satisfied the appropriate evidentiary standard and had thus met his burden. The trial court's legal conclusion that the father met his burden did not set out any of the factual underpinnings for that conclusion.
"Reciting the burden of proof that the father was required to meet per McLendon and '[s]aying that the [father] ha[d] sustained the burden of proof ... is not an adequate finding of the matters of fact involved in that issue .... It is in the nature of a legal conclusion rather than a finding of the underlying facts ....' United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386, 408-09, 54 S.Ct. 443, 78 L.Ed. 859 (1934). When a trial court's decision is conclusory and does not detail or analyze the predicate facts upon which it is based, it is not a specific finding of fact. Cf. Jones v. Tyson Foods, Inc., 26 Ark. App. 51, 759 S.W.2d 578 (1988) (holding that Workers' Compensation Commission did not satisfy its statutory obligation to make 'specific findings of fact' by simply declaring in conclusory fashion that claimant failed to meet the burden of proof); Ellis v. Dravo Corp., 97 Idaho 109, 111, 540 P.2d 294, 296 (1975) (statement that claimant did not sustain his burden of proof 'is not a finding of fact at all but a conclusion of law')."
21 So. 3d at 1258 (Thomas, J., concurring in the judgment but dissenting
from the rationale in part).
20 CL-2025-0643
Like in Adams, the trial court in the present case simply recited in
its judgment the burden of proof that the former husband was required
to meet under Ex parte McLendon and did not set out any of the factual
underpinnings for that conclusion. As previously stated, the judgment
specifically provides, in pertinent part: "That there has been a material
change in circumstances so substantial that the welfare and best interest
of the child would be promoted by a modification offsetting the disruptive
effect of uprooting the child." Thus, the trial court's conclusion that the
former husband met the Ex parte McLendon standard is much like the
dependency finding in the judgment at issue in K.M.
Although the opinion in K.M. did not explain its rationale in detail,
the conclusion in K.M. rests on the distinction between a factual finding
and a statement of a legal conclusion. Stating that a child is a dependent
child is a statement of legal conclusion, as is a statement that a parent
seeking a modification of a child's custody has met the Ex parte
McLendon standard or that he or she has demonstrated a material
change in circumstances and that the child's welfare and best interest
would be materially promoted by a change in custody. The factual
findings upon which either of those conclusions rest would include,
21 CL-2025-0643
among other things, findings about the parent's circumstances and
fitness for custody and how the child might be impacted by the actions of
the parent or parents. In light of the application of New Properties in
cases decided since the release of Adams, and, specifically, the
application of New Properties in K.M. and its progeny, the conclusion in
Adams that the judgment in that case, which did not contain any factual
findings regarding the basis for its conclusion that the father had met the
Ex parte McLendon standard, is no longer viable, and we therefore
overrule Adams to the extent that it holds that a judgment containing
language that merely mirrors the language of the Ex parte McLendon
standard is a finding of fact that obviates the need to preserve the issue
of the sufficiency of the evidence by filing a postjudgment motion.
As previously noted, the former wife concedes in her brief on appeal
that the trial court did not make any findings of fact in its judgment in
the present case. The former wife did not file a postjudgment motion.
Thus, the former wife failed to properly preserve the issue of the
sufficiency of the evidence, and we cannot consider the former wife's
argument relating to the sufficiency of the evidence supporting the trial
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court's judgment modifying custody of the child. New Props., 905 So. 2d
at 801-02; K.M., 326 So. 3d at 1063.
Lastly, the former wife contends that the trial court erred in finding
her in contempt of court because, she says, that finding is unsupported
by the evidence. In its judgment, the trial court held the former wife in
contempt for "failing to allow [the former husband] to exercise his 5th
weekend visitation as court-ordered." Even if we assume that the trial
court erred in finding the former wife in contempt for denying the former
husband his fifth-weekend visitation with the child, the trial court
imposed no sentence or sanction upon the former wife, and, therefore,
any error in its determination would be harmless error. See Adcock v.
Fronk, 289 So. 3d 1244, 1254 (Ala. Civ. App. 2019) (quoting Cheek v.
Dyess, 1 So.3d 1025, 1031 (Ala. Civ. App. 2007)) (concluding that any
possible error in a contempt finding was harmless error when the
" 'contempt judgment ... imposed no sanction upon the [appellant], nor
were the [appellant's] person, property, or rights adversely affected by
the judgment' "); Rule 45, Ala. R. App. P. ("No judgment may be reversed
or set aside ... for error as to any matter of pleading or procedure, unless
in the opinion of the court to which the appeal is taken or application is
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made, after an examination of the entire cause, it should appear that the
error complained of has probably injuriously affected substantial rights
of the parties."). Accordingly, we affirm the trial court's judgment insofar
as it determined that the former wife was in contempt of court for denying
the former husband his fifth-weekend visitation with the child.
Conclusion
Because the former wife has failed to raise an argument on appeal
that merits reversal of the trial court's judgment, that judgment is
affirmed.
Moore, P.J., and Hanson, Fridy, and Bowden, JJ., concur.