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Child Custody Case Reversed in Mobile County, Alabama


This is a child custody case post- divorce proceeding from Mobile County, Alabama, Myers v. Myers. This case stems from a divorce judgment granted in 2008. Here, the divorce judgment ratified a divorce agreement that split legal and physical custody of the children between the father and mother. Additionally, the divorce agreement required the father to pay “tuition for the minor children so long as they attend a private school in Mobile County.”

In 2011, the mother filed a Motion for Rule Nisi and to modify physical custody of the children; however, the motion mentioned nothing in regards to the modification of joint-legal-custody. The father filed an Answer and a Counterclaim seeking to terminate his obligation to pay the children private school tuition.

The trial court “reaffirmed” the paragraph in the divorce agreement that required the father to pay for the private school tuition and also ordered that the mother shall decide which private school for the children to attend. Accordingly, the father appealed the trial court order.

The Court of Civil Appeals Reversed the trial court order.

The Court drew attention to the fact that the mother never sought to modify the joint-legal-custody of the children which would give the mother authority to determine the private school the children would attend. The mother only sought to modify the joint-physical-custody of the children. Under Alabama law, Alabama Rules Civil Procedure 54(c) allows a trial court to grant a party the relief to which that party is entitled “irrespective of the request for relief contained in the pleadings.” However, Rule 54(c) does not permit a granting of relief if the issue is not contained in the pleadings and it appears that a party’s failure to ask for that particular relief will cause a substantial prejudice on the opposing party. Carden v. Penney, 362 So.2d 266, 268-69 (Ala. Civ. App. 1978).

In the case at hand, failing to mention a request for relief pertaining to joint-legal-custody in the pleadings would subject the father to substantial prejudice. Specifically, the father was never notified that there was a claim for modification of joint-legal-custody. Further, the issue was never litigated at trial.

The mother even stated at trial that she was not requesting that she have the right to decide which private school the children should attend. Counsel for the father even objected to the issue when the trial court mentioned that it might make such a modification.

In effect, if the Court were to allow such modification it would remove the father’s right to joint authority over the children’s choice of school while enforcing the father’s obligation to pay for the private school selected by the mother. Allowing this modification allows for a substantial alteration in the agreement that was contained in the original divorce proceeding; therefore, the father was subjected to substantial prejudice and caused for the order of the trial court to be reversed.

It should be noted that it is well within the trial courts power to modify a divorce judgment; however, there are limitations to the trial courts power. Here, the Court focuses on how the trial court abused the notions of fair play and failed to properly follow the standards of due process in respect to the modification of the divorce judgment without the proper pleadings being in place. This case is a fine illustration of the importance of proper pleading, and the effect that can follow a mere failure to plead the correct things.
If you are seeking a Birmingham child custody lawyer, contact Ingram Law LLC or Joseph A. Ingram at (205) 335-2640..

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