from Jefferson Circuit Court (CV-17-247).
Hoffman, Birmingham, for appellant.
Sides Bonds of Jones Walker LLP, Birmingham, for appellee.
C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, Stewart, and
Mitchell, JJ., concur.
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.
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.
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
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.
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
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.
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 ...