Tjh v. Snf

960 So. 2d 669, 2006 Ala. Civ. App. LEXIS 673, 2006 WL 3122710
CourtCourt of Civil Appeals of Alabama
DecidedNovember 3, 2006
Docket2050257
StatusPublished

This text of 960 So. 2d 669 (Tjh v. Snf) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tjh v. Snf, 960 So. 2d 669, 2006 Ala. Civ. App. LEXIS 673, 2006 WL 3122710 (Ala. Ct. App. 2006).

Opinion

960 So.2d 669 (2006)

T.J.H.
v.
S.N.F.

2050257.

Court of Civil Appeals of Alabama.

November 3, 2006.
Rehearing Denied December 15, 2006.

*671 Rod M. Alexander, Moulton, for appellant.

Submitted on appellant's brief only.

CRAWLEY, Presiding Judge.

This is a custody-modification case. T.J.H. ("the father") and S.N.F. ("the mother") were married and had a daughter, A.H., together. The father and the mother divorced in September 2002, while the father was on active military duty awaiting deployment with the United States Marine Corps. The final judgment of divorce awarded the father and the mother joint legal custody of A.H. with the mother exercising sole physical custody.

The mother had four children including A.H., and each child had a different father. In April 2004, the Morgan County Department of Human Resources ("DHR") filed a dependency petition with the juvenile court of Morgan County alleging that A.H. had been neglected or abused, based on a finding by DHR that the mother's boyfriend had physically abused A. H's half sibling; DHR also determined that the mother had a drug-abuse problem. The juvenile court held a 72-hour hearing, and the parties present at the hearing agreed that the children should be in the custody of DHR. The mother testified at the hearing that the father was in Iraq, but she stated that he was not A.H.'s "legal" father. Based on that testimony, the juvenile court issued an order vesting pendente lite custody of A.H. with DHR.

While the father was stationed in Afghanistan, he received notice through the Red Cross in Afghanistan that A.H. was in foster care. The father contacted DHR via telephone and arranged for DHR to move A.H. to his sister's home. He attempted to take emergency leave from his military assignment so that he could petition the court for custody of A.H., but his request was denied. After he completed his military assignment, the father was allowed to take leave, and on July 5, 2005, he filed with the circuit court of Morgan County a motion for modification of custody and for emergency relief. The circuit court awarded pendente lite custody of A.H. to the father on July 7, 2005. The juvenile court subsequently dismissed without prejudice DHR's pending dependency petition relating to A.H. After an ore tenus proceeding on the father's motion for modification, the circuit court entered *672 an order on September 27, 2005, denying the father's motion to modify custody and awarding custody to the mother as follows:

"9. It is the Court's intention that the temporary custody of [A.H.] placed with the [mother] shall create no presumption in her favor in the event of a future motion or petition to modify custody. The standard that shall apply to a future custody change so long as this Order remains in effect is the best interests of the child. The Court will set this case for a review of custody or custody modification proceedings, without prepayment of a civil docket fee, upon motion of the [father], the [mother], or DHR."

The father filed postjudgment motions on September 29, 2005, requesting in part that the circuit court issue a final custody order. The circuit court denied the postjudgment motions after conducting a hearing, and the father timely appealed to this court.

The Finality of the September 27, 2005, Order

It is of paramount importance in custody cases for the trial court to determine whether it is conducting an initial custody proceeding or a custody-modification proceeding, and to indicate whether a custody order is a final custody judgment or a pendente lite order. Rich v. Rich, 887 So.2d 289, 299 (Ala.Civ.App.2004). A "temporary order" as to custody or a "temporary custody award" is generally considered a final order, but a pendente lite custody order is not a final order. Ex parte J.P., 641 So.2d 276, 278 (Ala.1994).

A pendente lite custody order is an order that is effective only during the pendency of the litigation in an existing case and is usually replaced by the entry of a final judgment. Hodge v. Steinwinder, 919 So.2d 1179, 1182 (Ala.Civ.App.2005). Pendente lite custody orders allow a trial court to take into consideration developments in the lives of the child and the parties that naturally occur during the gap in time between the filing of an action and the final hearing in the matter. Id.

However, a "temporary custody award" or a "temporary order" as to custody is a "final" custody award or judgment. Despite its name, a temporary order as to custody is intended to remain effective until a party seeks to modify it. It may be modified if the trial court reviews the case and determines that changed circumstances that warrant a modification have come into existence since the last custody award. 919 So.2d at 1182-83. Such an award is not a pendente lite award. Id.

The language often used by the trial courts is confusing. Custody, by its very nature, is always temporary and never permanent, and the trial court always retains jurisdiction to modify custody under the appropriate circumstances even though the temporary custody of a child may have been determined. Ex parte J.P., 641 So.2d at 278. "Semantically, this entire matter would be simpler if all courts declined to use the phrase `temporary custody' and simply used `pendente lite' or `custody' as circumstances require." Id.

"Likewise, the distinction between initial or original custody proceedings and modification proceedings is important because of the different standards of proof required." Id. The "best interest of the child standard" applies when custody has not previously been determined. "However, if there is a judgment granting custody to one parent, or if one parent has `given up' legal custody, then custody will be changed only if it would `materially promote' the children's welfare." Ex parte Couch, 521 So.2d 987, 989 (Ala.1988), citing Ex parte McLendon, 455 So.2d 863 (Ala. *673 1984). The McLendon standard considers whether a change in custody would materially promote the welfare of the child and tries to prevent the uprooting of the child. Ex parte Couch, supra. This standard creates a presumption in favor of the party who has custody of the child at the time of the filing of the modification motion and assumes that uprooting the child would be a traumatic experience. See Ex parte McLendon, supra, and Couch, supra. A pendente lite order awarding custody to a parent does not create a presumption in favor of the party who is awarded pendente lite custody. Reid v. Reid, 897 So.2d 349, 355 (Ala.Civ.App.2004).

In this case, the court's September 27, 2005, order denied the father's motion to modify custody because, the court determined, the father did not meet the McLendon standard. In the same order that the circuit court purported to apply the McLendon presumption in favor of the mother it stated that the best-interests-of-the-child standard would apply in the event either party filed a motion to modify custody in the future; awarded the mother "temporary" physical custody; and purported to grant DHR, the mother, or the father the right to move for a modification in the future without having to pay a civil docket fee. The custody award at issue was not made by the circuit court pending further litigation of the existing case; it was made with the intent that it remain effective until such time as the father, the mother, or DHR sought a custody modification.

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Bluebook (online)
960 So. 2d 669, 2006 Ala. Civ. App. LEXIS 673, 2006 WL 3122710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tjh-v-snf-alacivapp-2006.