Appeal
from Jefferson Circuit Court (CV-17-247)
PER
CURIAM.
AFFIRMED;
NO OPINION.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim,
Stewart, and Mitchell, JJ., concur.
SELLERS, Justice (dissenting).
I
respectfully dissent from this Court's decision to affirm
without an opinion the summary judgment in favor Marjorie
Forney in this legal-malpractice action asserted against her
by Morgan Murphy stemming from an underlying divorce
proceeding involving child custody.
Morgan
Murphy ("the husband") and Erica Murphy ("the
wife") were married in February 2014; one child was born
of the marriage. In June 2015, the wife filed a complaint
seeking a divorce. In her complaint, the wife averred, among
other things, that it was in the minor child's best
interest that the parties have joint legal custody of the
child, with the wife having "primary" physical
custody. The husband retained Forney, an attorney licensed to
practice law in Alabama, to represent him. According to the
husband, Forney knew that he desired to have sole or, at the
least, partial physical custody of the child; however, Forney
failed to file a counterclaim asserting a custody claim.
Forney expressed her concern to the husband, both before and
after trial, about the impact on the case of failing to file
a counterclaim seeking custody.
During
the divorce proceedings, the trial court concluded that it
lacked subject-matter jurisdiction to award the husband
physical custody of the child because he had not filed a
counterclaim seeking custody; accordingly, the court denied
the husband an opportunity to present any evidence in support
of his being awarded physical custody. The trial court
thereafter entered a final judgment of divorce providing,
among other things, that the husband and the wife would have
"joint and legal custody" of the child and that the
wife would have "primary" physical custody of the
child.
The
husband terminated Forney's services, and his new counsel
moved the trial court to alter, amend, or vacate the judgment
or, alternatively, to order a new trial; the trial court
denied that motion. The husband appealed to the Court of
Civil Appeals, arguing that the trial court erred in failing
to recognize that § 30-3-1, Ala. Code 1975, provides
that, "[u]pon granting a divorce, the court may give the
custody ... of the children of the marriage to either father
or mother, as may seem right and proper," and that that
error by the trial court violated his right to due process.
While
the husband's appeal in the divorce proceeding was
pending before the Court of Civil Appeals, he filed an action
against Forney pursuant to the Alabama Legal Services
Liability Act, § 6-5-570 et seq., Ala. Code 1975
("the ALSLA"), asserting that Forney had
negligently failed to assert a counterclaim seeking sole
physical custody of the child for the husband and that her
failure to do so had caused him to suffer damage. The trial
court stayed the legal-malpractice action pending a ruling by
the Court of Civil Appeals in the divorce proceeding.
The
Court of Civil Appeals reversed the judgment and remanded the
case in the divorce proceeding, concluding that the trial
court incorrectly determined that it lacked subject-matter
jurisdiction to award the husband physical custody of the
child and that the court thus erred in denying the husband an
opportunity to present evidence in support of an award of
custody:
"Notwithstanding the fact that the [husband] did not
file a counterclaim regarding the child's custody, §
30-3-1 provides that a circuit court hearing a divorce case
has the authority to enter a judgment awarding 'either
father or mother, as may seem right and proper,' the
custody of children of the marriage.
"'The circuit court's jurisdiction to do so is
derived from the principles of equity; where a child is
physically present within the jurisdiction of a circuit court
in this state, the court has inherent authority to act to
protect the welfare and best interests of the child. [Ex
parte] Handley[, 460 So.2d 167 (Ala. 1984)]. A party
need not specifically invoke the circuit court's inherent
jurisdiction; rather, any pleading showing on its
face that the welfare of a child requires an order with
respect to its custody and support is sufficient to invoke
the jurisdiction of the circuit court to settle the matter.
Handley. Once the circuit court's jurisdiction
is thus invoked, any matter affecting a child may become the
subject of its adjudication. Handley.'
"Ex parte Lipscomb, 660 So.2d 986, 989 (Ala.
1994). The circuit court incorrectly concluded that it lacked
subject-matter jurisdiction to award the [husband] custody of
the child and erred to reversal by denying the [husband] an
opportunity to present evidence in support of ...