Appeal from Elmore Circuit Court (DR-09-900071.01)
Matthew Gallant ("the father") appeals from a judgment of the Elmore Circuit Court ("the trial court"), which, among other things, denied his petition to modify the physical custody of the four children from his former marriage to Rebecca Gallant ("the mother"), denied his petition to find the mother in contempt, granted the mother's petition to modify legal custody and visitation, and ordered the father to maintain health insurance for the children's benefit. We affirm.
The background pertinent to the disposition of this appeal is as follows. The trial court entered a judgment divorcing the parties, and incorporating an agreement of the parties, on August 24, 2009. On May 5, 2012, the father filed a contempt petition alleging that the mother had violated various provisions of the divorce judgment. The mother counterclaimed for an order modifying the legal-custody and visitation provisions of the divorce judgment and, by amendment, for an order modifying the child-support provisions of the judgment and for a finding of contempt against the father for having violated various provisions of the divorce judgment. On November 13, 2012, the father amended his petition to request an order modifying the divorce judgment to award him sole physical custody of the children.
After the case was set for trial, the father filed a written objection to the use of the custody-modification standard enunciated in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), on the ground that applying that standard would violate his constitutional rights. The father subsequently filed a motion further arguing that the McLendon standard could not be applied to his custody-modification petition because, he said, that standard had been superseded by statute.
The trial court conducted an ore tenus hearing on February 11 and 12, 2014. On February 28, 2014, the trial court entered a final judgment, refusing to find either party in contempt, applying the McLendon standard, denying the father's custody-modification petition, granting the mother's petition to modify legal custody and visitation, and ordering the father to maintain health insurance for the children's benefit. The father timely moved to alter, amend, or vacate the judgment. The trial court denied the father's motion on April 12, 2014, after which the father timely appeal to this court.
The father raises five issues on appeal: (1) that the McLendon standard is unconstitutional, (2) that the McLendon standard has been superseded by statute, (3) that the trial court misinterpreted and misapplied the McLendon standard, (4) that the trial court erred in failing to find the mother in contempt, and (5) that the trial court erred in ordering him to maintain health insurance for the children's benefit.
I. The Constitutionality of the McLendon Standard
The doctrine of res judicata provides that a final judgment entered by a court of competent jurisdiction binds the parties from relitigating the issues decided therein. See Hughes v. Martin, 533 So.2d 188 (Ala. 1988). Applied strictly, that doctrine would prevent repeated litigation over the custody of a child; however, as early as 1858, our supreme court recognized that, because of the shifting nature of the needs of a growing child, a court of equity should be allowed to redetermine custody in appropriate cases. See Cornelius v. Cornelius, 31 Ala. 479 (1858). In keeping with the rationale behind the doctrine of res judicata, the supreme court decided that, in order to prevent "oft-repeated, harassing litigation over the custody of infants, " a final child-custody determination, like any other judgment, could not be reopened for reconsideration of the correctness of the judgment. Sparkman v. Sparkman, 217 Ala. 41, 43, 114 So. 580, 581 (1927). It further held, however, that, if a party could satisfactorily prove that circumstances had changed in a significant way since the entry of the earlier judgment, the doctrine of res judicata would not preclude a new determination of child custody based on those changed circumstances. See Pearce v. Pearce, 136 Ala. 188, 190, 33 So. 883, 884 (1903). Hence, the law became that a prior custody judgment could be modified based only on a material change of circumstances. See Wren v. Stutts, 258 Ala. 421, 422, 63 So.2d 370, 371 (1953).
The law placed the burden "on the party seeking a change of custody to show some change of conditions or other substantial reason" for modifying custody. Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 446 (1947). In Ford v. Ford, 54 Ala.App. 510, 512, 310 So.2d 230, 232 (Civ. App. 1974), this court held that,
"[i]n order to support a petition for modification of custody, the petitioner must produce evidence of a material change of circumstances of the parties occurring since the last prior decree which adversely affects the welfare and best interest of the child to such an extent that a change in custody is warranted or required."
(Emphasis added.) The supreme court found that the above-emphasized language improperly limited the scope of the inquiry of a trial court considering a custody-modification petition and that the law more correctly provided that "'... the parent will not be permitted to reclaim the custody of the child, unless he can show that a change of the custody will materially promote his child's welfare.'" Ford v. Ford, 293 Ala. 743, 744, 310 So.2d 234, 234 (1975) (quoting Greene, 249 Ala. at 157, 30 So.2d at 445, quoting in turn Stringfellow v. Somerville, 95 Va. 701, 707, 29 S.E. 685, 687 (1898)).
The following year, Judge Bradley, writing for this court, summarized the burden of proof in a child-custody-modification proceeding as follows:
"As applied to child custody, the 'changed circumstance doctrine' is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child's healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court's satisfaction that material changes affecting the child's welfare since the most recent decree demonstrate that custody should be disturbed to promote the child's best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned."
Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ. App. 1976). Afterwards, this court formulated other custody-modification standards, see Quintanilla v. George, 340 So.2d 804, 807 (Ala. Civ. App. 1976); Roberson v. Roberson, 370 So.2d 1008, 1010 (Ala. Civ. App. 1979); and Alford v. Alford, 368 So.2d 295, 297 (Ala. Civ. App. 1979), all intended to encapsulate the various decisions on the matter by the supreme court, which this court must follow. See Ala. Code 1975, § 12-3-16.
In Ex parte McLendon, 455 So.2d 863 (Ala. 1984), the supreme court settled the law as to the correct burden of proof to be applied in a child-custody-modification proceeding. In Ex parte McLendon, a divorced mother sought to reclaim custody of her child two years after agreeing as part of a divorce settlement that the child's paternal grandparents, who had been exercising custody of the child even before the divorce proceeding, would exercise custody of the child. 455 So.2d at 864-65. As it had in Ford, supra, the supreme court relied on Greene and Somerville in holding that the mother had to show "not only that she is fit, but also that the change of custody 'materially promotes' the child's best interest and welfare." 455 So.2d at 866. The supreme court also endorsed in its entirety Judge Bradley's statement of the law in Wood, 455 So.2d at 865-66, and reiterated its holding in Ford that the mother did not have to prove a change of circumstances "adversely" affecting the welfare of the child. 455 So.2d at 866. The supreme court then reversed this court's judgment affirming the trial court's award of custody to the mother on the basis that the mother had failed to prove that a change of custody would materially promote the best interest and welfare of the child, concluding that the evidence disclosed only that the mother and the paternal grandparents could equally care for the child. Id. The supreme court emphasized that the child should not be uprooted from the only home she had known without evidence demonstrating that the benefits of the proposed change would overcome the child's "need for continuity." Id. In conclusion, the supreme court noted that,
"[a]lthough the best interests of the child are paramount, this is not the standard to be applied in this case. It is important [to] show that the child's interests are promoted by the change, i.e., that [the mother] produce evidence to overcome the 'inherently disruptive effect caused by uprooting the child.'"
455 So.2d at 866 (quoting Wood, 333 So.2d at 828).
Since Ex parte McLendon was decided in 1984, the supreme court has reiterated that the "McLendon standard" applies when deciding whether a provision in a divorce judgment awarding one parent sole physical custody of a child should be modified. See Ex parte Cleghorn, 993 So.2d 462, 467 (Ala. 2008) (stating that, "[s]ince Ex parte McLendon, we have repeatedly affirmed that standard as the one that should govern in deciding whether a change in custody is warranted, " and overruling those cases additionally requiring that the evidence must disclose "'"'an obvious and overwhelming necessity for a change'"'" (quoting Bledsoe v. Cleghorn, 993 So.2d 456, 461 (Ala. Civ. App. 2007), quoting in turn other cases)). However, the supreme court has clarified that the McLendon standard does not apply to some other types of custody disputes. See Ex parte Terry, 494 So.2d 628 (Ala. 1986) (holding that McLendon standard did not apply in custody contest between natural father and maternal grandparents when father did not lose custodial rights to maternal grandparents in divorce judgment); Ex parte Couch, 521 So.2d 987 (Ala. 1988) (explaining that best-interest-of-the-child standard, and not McLendon standard, applies when parent seeks modification of joint-physical-custody provision in judgment); and Ex parte D.J., 645 So.2d 303 (Ala. 1994) (pendente lite custody order is not a final determination of custody giving rise to McLendon standard). In those custody cases in which the supreme court has held that the McLendon standard does not apply, the court has instructed that the decision whether to modify custody should be based on the best interests of the child. See, e.g., Ex parte Couch, supra; see also N.T. v. P.G., 54 So.3d 918 (Ala. Civ. App. 2010) (applying best-interests standard to visitation-modification petition).
A. Separation of Powers
The foregoing brief summary demonstrates that the appellate judiciary of this state crafted the McLendon standard over the course of over 125 years of jurisprudence dealing with modification of the physical-custody provisions of a final judgment. See Ex parte Russell, 19 So.3d 886, 891 (Ala. 2009) (Murdock, J., concurring specially) ("the McLendon standard serves merely as device designed by the Court ...."). In formulating that standard, the courts did not depend on any legislative direction, the Alabama Legislature not having enacted any statute specifying the standard for custody-modification actions before Ex parte McLendon was decided. Furthermore, since the pronouncement of the McLendon standard, the Alabama Legislature has not passed any law adopting the McLendon standard. The father contends that the supreme court usurped legislative power by judicially legislating a custody-modification standard not found anywhere in the Alabama Code.
In his brief, the father argues: "No matter how well intentioned a court cannot decide cases based on what it believes the law should, but does not, state." (Citing Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921) ("[The judge] is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.").) The father then argues that, in Ex parte Christopher, 145 So.3d 60 (Ala. 2013), the supreme court held that a court could not create a right to postminority educational support when no statute prescribed that right. From that authority, the father maintains that the supreme court did not have the power to establish the McLendon standard.
Article III, §§ 42 and 43, of the Alabama Constitution of 1901 mandate that the three principal powers of government shall be exercised by separate departments. Article III, § 42, Ala. Const. 1901, provides:
"The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are ...