Rel: February 7, 2025
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, 2024-2025 _________________________
CL-2024-0655 _________________________
Heather Elizabeth McKelvy
v.
Hunter Jacob Brazier
Appeal from Morgan Circuit Court (DR-21-900068.01)
MOORE, Presiding Judge.
Heather Elizabeth McKelvy ("the mother") appeals from a final
judgment entered by the Morgan Circuit Court ("the trial court")
awarding her and Hunter Jacob Brazier ("the father") joint legal and joint CL-2024-0655
physical custody of their minor daughter ("the child"). We reverse the
judgment and remand the case to the trial court with instructions.
Background
The child was born out of wedlock on December 2, 2020. In a
previous civil action, the trial court entered a "pendente lite" order ("the
initial child-custody determination") adopting a settlement agreement of
the parties, pursuant to which the mother received "primary" physical
custody of the child.1 Furthermore, paragraph 17 of the settlement
agreement provided, in pertinent part:
"Unless a party hereto files [an] ... objection with the Court, on the child's third birthday, the Pendente Lite custody in the mother shall become a Permanent Order of True Joint Custody in both parents. Said custody shall be exercised in a week on week off manner."
Following the entry of the initial child-custody determination, the mother
exercised sole physical custody of the child, subject to visitation by the
father.
1We construe the initial child-custody determination as awarding
the mother sole physical custody of the child. See Smith v. Smith, 887 So. 2d 257, 262 (Ala. Civ. App. 2003). 2 CL-2024-0655
On June 1, 2023, the mother commenced the underlying action by
filing a complaint entitled "Objection to Custody Change Pursuant to
Paragraph 17 of Previously Executed Settlement Agreement." In the
complaint, the mother asserted that she had been awarded sole custody
of the child in the initial child-custody determination, that the initial
child-custody determination could be modified only in accordance with
the standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984),
and that the custody arrangement should not change on the child's third
birthday because the father was not "up to the challenge of true joint
[physical] custody" and had not "demonstrated a genuine interest in the
... child" and the child "will only be damaged by the exercise of true joint
custody." The father filed an answer denying the material allegations of
the complaint and asserting that the mother had been awarded only
pendente lite custody of the child in the initial child-custody
determination and that the permanent custody of the child should be
decided in accordance with the best-interests-of-the-child standard. See
Rich v. Rich, 887 So. 2d 289 (Ala. Civ. App. 2004).
On April 16, 2024, the trial court conducted a bench trial. During
the trial, the parties argued over (1) whether the initial child-custody
3 CL-2024-0655
determination was a final judgment or a pendente lite order; (2) whether
the initial child-custody determination contained a void automatic
reversionary clause; and (3) whether the McLendon standard or the best-
interests-of-the-child standard applied to the modification of the initial
child-custody determination. Upon conclusion of the trial, the trial court
entered a final judgment providing, in pertinent part:
"The [mother's] Objection to the Change in Custody filed on June 1, 2023[,] is hereby DENIED. The Agreement of the Parties ... that gives the parties joint legal and joint physical custody upon the minor child's third birthday is adopted by this Court. All other provisions of the settlement agreement are also adopted in this order."
(Capitalization in original.) On May 14, 2024, the mother timely filed a
postjudgment motion to alter, amend, or vacate the final judgment, which
the trial court denied on July 15, 2024. On August 20, 2024, the mother
filed a notice of appeal.
Issue
The mother argues that the final judgment should be reversed
because, she says, the trial court failed to apply the McLendon standard
and, instead, enforced a void automatic reversionary clause when it
awarded the parties joint legal and joint physical custody of the child.
4 CL-2024-0655
Standard of Review
Whether an order determining custody contains a void automatic
reversionary clause is a question of law that this court reviews de novo.
See generally Cleveland v. Cleveland, 18 So. 3d 950 (Ala. Civ. App. 2009).
The same appellate standard of review governs the question of the proper
custody standard applicable to the case. See Gallant v. Gallant, 184 So.
3d 387, 401 (Ala. Civ. App. 2014).
Analysis
Although the central issue in the case concerned the meaning and
effect of the initial child-custody determination, the parties did not make
that determination, or the settlement agreement that it adopted, part of
the record on appeal. However, the parties agree as to the wording of
paragraph 17 of the settlement agreement, which was incorporated into
the initial child-custody determination. Paragraph 17 clearly and
unambiguously provides that, upon the child's reaching her third
birthday, the sole physical- custody arrangement would automatically
transform into a joint physical-custody arrangement unless one of the
parties objected. That provision is void under Alabama law because it
impermissibly allows for a modification of custody based solely on the
5 CL-2024-0655
passage of time and without a legal determination that the circumstances
existing at the time warrant the modification of custody. See Cleveland,
supra (reversing judgment containing void clause purporting to change
custody arrangement upon child's reaching first birthday). Paragraph 17
of the settlement agreement was an automatic reversionary clause that
was unenforceable as a matter of law. See Daugherty v. Daugherty, 993
So. 2d 8 (Ala. Civ. App. 2008). The trial court erred in expressly adopting
that clause and in deciding the custody of the child based on its
conclusion that the mother had not presented a valid objection to
enforcement of the clause.
The mother argues that the trial court should have decided custody
of the child based on the McLendon standard.2 The McLendon standard
applies when a noncustodial parent seeks modification of a final
judgment that awarded the other parent sole physical custody of his or
2Under the standard set forth in Ex parte McLendon, 455 So. 2d
863 (Ala.
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Rel: February 7, 2025
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, 2024-2025 _________________________
CL-2024-0655 _________________________
Heather Elizabeth McKelvy
v.
Hunter Jacob Brazier
Appeal from Morgan Circuit Court (DR-21-900068.01)
MOORE, Presiding Judge.
Heather Elizabeth McKelvy ("the mother") appeals from a final
judgment entered by the Morgan Circuit Court ("the trial court")
awarding her and Hunter Jacob Brazier ("the father") joint legal and joint CL-2024-0655
physical custody of their minor daughter ("the child"). We reverse the
judgment and remand the case to the trial court with instructions.
Background
The child was born out of wedlock on December 2, 2020. In a
previous civil action, the trial court entered a "pendente lite" order ("the
initial child-custody determination") adopting a settlement agreement of
the parties, pursuant to which the mother received "primary" physical
custody of the child.1 Furthermore, paragraph 17 of the settlement
agreement provided, in pertinent part:
"Unless a party hereto files [an] ... objection with the Court, on the child's third birthday, the Pendente Lite custody in the mother shall become a Permanent Order of True Joint Custody in both parents. Said custody shall be exercised in a week on week off manner."
Following the entry of the initial child-custody determination, the mother
exercised sole physical custody of the child, subject to visitation by the
father.
1We construe the initial child-custody determination as awarding
the mother sole physical custody of the child. See Smith v. Smith, 887 So. 2d 257, 262 (Ala. Civ. App. 2003). 2 CL-2024-0655
On June 1, 2023, the mother commenced the underlying action by
filing a complaint entitled "Objection to Custody Change Pursuant to
Paragraph 17 of Previously Executed Settlement Agreement." In the
complaint, the mother asserted that she had been awarded sole custody
of the child in the initial child-custody determination, that the initial
child-custody determination could be modified only in accordance with
the standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984),
and that the custody arrangement should not change on the child's third
birthday because the father was not "up to the challenge of true joint
[physical] custody" and had not "demonstrated a genuine interest in the
... child" and the child "will only be damaged by the exercise of true joint
custody." The father filed an answer denying the material allegations of
the complaint and asserting that the mother had been awarded only
pendente lite custody of the child in the initial child-custody
determination and that the permanent custody of the child should be
decided in accordance with the best-interests-of-the-child standard. See
Rich v. Rich, 887 So. 2d 289 (Ala. Civ. App. 2004).
On April 16, 2024, the trial court conducted a bench trial. During
the trial, the parties argued over (1) whether the initial child-custody
3 CL-2024-0655
determination was a final judgment or a pendente lite order; (2) whether
the initial child-custody determination contained a void automatic
reversionary clause; and (3) whether the McLendon standard or the best-
interests-of-the-child standard applied to the modification of the initial
child-custody determination. Upon conclusion of the trial, the trial court
entered a final judgment providing, in pertinent part:
"The [mother's] Objection to the Change in Custody filed on June 1, 2023[,] is hereby DENIED. The Agreement of the Parties ... that gives the parties joint legal and joint physical custody upon the minor child's third birthday is adopted by this Court. All other provisions of the settlement agreement are also adopted in this order."
(Capitalization in original.) On May 14, 2024, the mother timely filed a
postjudgment motion to alter, amend, or vacate the final judgment, which
the trial court denied on July 15, 2024. On August 20, 2024, the mother
filed a notice of appeal.
Issue
The mother argues that the final judgment should be reversed
because, she says, the trial court failed to apply the McLendon standard
and, instead, enforced a void automatic reversionary clause when it
awarded the parties joint legal and joint physical custody of the child.
4 CL-2024-0655
Standard of Review
Whether an order determining custody contains a void automatic
reversionary clause is a question of law that this court reviews de novo.
See generally Cleveland v. Cleveland, 18 So. 3d 950 (Ala. Civ. App. 2009).
The same appellate standard of review governs the question of the proper
custody standard applicable to the case. See Gallant v. Gallant, 184 So.
3d 387, 401 (Ala. Civ. App. 2014).
Analysis
Although the central issue in the case concerned the meaning and
effect of the initial child-custody determination, the parties did not make
that determination, or the settlement agreement that it adopted, part of
the record on appeal. However, the parties agree as to the wording of
paragraph 17 of the settlement agreement, which was incorporated into
the initial child-custody determination. Paragraph 17 clearly and
unambiguously provides that, upon the child's reaching her third
birthday, the sole physical- custody arrangement would automatically
transform into a joint physical-custody arrangement unless one of the
parties objected. That provision is void under Alabama law because it
impermissibly allows for a modification of custody based solely on the
5 CL-2024-0655
passage of time and without a legal determination that the circumstances
existing at the time warrant the modification of custody. See Cleveland,
supra (reversing judgment containing void clause purporting to change
custody arrangement upon child's reaching first birthday). Paragraph 17
of the settlement agreement was an automatic reversionary clause that
was unenforceable as a matter of law. See Daugherty v. Daugherty, 993
So. 2d 8 (Ala. Civ. App. 2008). The trial court erred in expressly adopting
that clause and in deciding the custody of the child based on its
conclusion that the mother had not presented a valid objection to
enforcement of the clause.
The mother argues that the trial court should have decided custody
of the child based on the McLendon standard.2 The McLendon standard
applies when a noncustodial parent seeks modification of a final
judgment that awarded the other parent sole physical custody of his or
2Under the standard set forth in Ex parte McLendon, 455 So. 2d
863 (Ala. 1984), the father, as the noncustodial parent, would have had to demonstrate that a material change in circumstances had occurred since the entry of the initial child-custody determination, that a change to joint physical custody would materially promote the child's best interests, and that the benefits of the change would more than offset the disruptive effect of the change in custody. 455 So. 2d at 866. See also Ex parte Cleghorn, 993 So. 2d 462, 468-69 (Ala. 2008). 6 CL-2024-0655
her child. See Whitehead v. Whitehead, 214 So. 3d 367, 370 (Ala. Civ.
App. 2016). On the other hand, when a trial court enters a pendente lite
custody order in an initial child-custody dispute, the McLendon standard
does not apply, and the controversy between the parents over custody
should be decided based on the best interests of the child. Id.
We cannot decide whether the trial court should have applied the
McLendon standard in this appeal. At trial, the parties disputed whether
the initial child-custody determination was a true pendente lite order
that was intended to be in place only during the litigation in the original
civil action or whether it was, in substance, a final judgment that
triggered the application of the McLendon standard, see Rich, supra, but
the trial court did not resolve that dispute; instead, the trial court applied
paragraph 17 of the settlement agreement to decide the custody issue. In
effect, the trial court never addressed the appropriate custody standard
to be applied, and, as a result, this court has no ruling on that issue to
review. Under these circumstances, this court must reverse the final
judgment and remand the case for the trial court to determine and to
apply the appropriate custody standard. See L.W. v. B.C.D., 364 So. 3d
999, 1003 (Ala. Civ. App. 2022).
7 CL-2024-0655
Conclusion
For the foregoing reasons, we reverse the final judgment and
remand the case to the trial court for further proceedings consistent with
this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Edwards, Hanson, Fridy, and Lewis, JJ., concur.