Heather Elizabeth McKelvy v. Hunter Jacob Brazier (Appeal from Morgan Circuit Court: DR-21-900068.01).

Rel: February 7, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________

CL-2024-0655
_________________________

Heather Elizabeth McKelvy

v.

Hunter Jacob Brazier

Appeal from Morgan Circuit Court
(DR-21-900068.01)

MOORE, Presiding Judge.

Heather Elizabeth McKelvy ("the mother") appeals from a final

judgment entered by the Morgan Circuit Court ("the trial court")

awarding her and Hunter Jacob Brazier ("the father") joint legal and joint
CL-2024-0655

physical custody of their minor daughter ("the child"). We reverse the

judgment and remand the case to the trial court with instructions.

Background

The child was born out of wedlock on December 2, 2020. In a

previous civil action, the trial court entered a "pendente lite" order ("the

initial child-custody determination") adopting a settlement agreement of

the parties, pursuant to which the mother received "primary" physical

custody of the child.1 Furthermore, paragraph 17 of the settlement

agreement provided, in pertinent part:

"Unless a party hereto files [an] ... objection with the Court,
on the child's third birthday, the Pendente Lite custody in the
mother shall become a Permanent Order of True Joint
Custody in both parents. Said custody shall be exercised in a
week on week off manner."

Following the entry of the initial child-custody determination, the mother

exercised sole physical custody of the child, subject to visitation by the

father.

1We construe the initial child-custody determination as awarding

the mother sole physical custody of the child. See Smith v. Smith, 887
So. 2d 257, 262 (Ala. Civ. App. 2003).
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On June 1, 2023, the mother commenced the underlying action by

filing a complaint entitled "Objection to Custody Change Pursuant to

Paragraph 17 of Previously Executed Settlement Agreement." In the

complaint, the mother asserted that she had been awarded sole custody

of the child in the initial child-custody determination, that the initial

child-custody determination could be modified only in accordance with

the standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984),

and that the custody arrangement should not change on the child's third

birthday because the father was not "up to the challenge of true joint

[physical] custody" and had not "demonstrated a genuine interest in the

... child" and the child "will only be damaged by the exercise of true joint

custody." The father filed an answer denying the material allegations of

the complaint and asserting that the mother had been awarded only

pendente lite custody of the child in the initial child-custody

determination and that the permanent custody of the child should be

decided in accordance with the best-interests-of-the-child standard. See

Rich v. Rich, 887 So. 2d 289 (Ala. Civ. App. 2004).

On April 16, 2024, the trial court conducted a bench trial. During

the trial, the parties argued over (1) whether the initial child-custody

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determination was a final judgment or a pendente lite order; (2) whether

the initial child-custody determination contained a void automatic

reversionary clause; and (3) whether the McLendon standard or the best-

interests-of-the-child standard applied to the modification of the initial

child-custody determination. Upon conclusion of the trial, the trial court

entered a final judgment providing, in pertinent part:

"The [mother's] Objection to the Change in Custody filed
on June 1, 2023[,] is hereby DENIED. The Agreement of the
Parties ... that gives the parties joint legal and joint physical
custody upon the minor child's third birthday is adopted by
this Court. All other provisions of the settlement agreement
are also adopted in this order."

(Capitalization in original.) On May 14, 2024, the mother timely filed a

postjudgment motion to alter, amend, or vacate the final judgment, which

the trial court denied on July 15, 2024. On August 20, 2024, the mother

filed a notice of appeal.

Issue

The mother argues that the final judgment should be reversed

because, she says, the trial court failed to apply the McLendon standard

and, instead, enforced a void automatic reversionary clause when it

awarded the parties joint legal and joint physical custody of the child.

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Standard of Review

Whether an order determining custody contains a void automatic

reversionary clause is a question of law that this court reviews de novo.

See generally Cleveland v. Cleveland, 18 So. 3d 950 (Ala. Civ. App. 2009).

The same appellate standard of review governs the question of the proper

custody standard applicable to the case. See Gallant v. Gallant, 184 So.

3d 387, 401 (Ala. Civ. App. 2014).

Analysis

Although the central issue in the case concerned the meaning and

effect of the initial child-custody determination, the parties did not make

that determination, or the settlement agreement that it adopted, part of

the record on appeal. However, the parties agree as to the wording of

paragraph 17 of the settlement agreement, which was incorporated into

the initial child-custody determination. Paragraph 17 clearly and

unambiguously provides that, upon the child's reaching her third

birthday, the sole physical- custody arrangement would automatically

transform into a joint physical-custody arrangement unless one of the

parties objected. That provision is void under Alabama law because it

impermissibly allows for a modification of custody based solely on the

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passage of time and without a legal determination that the circumstances

existing at the time warrant the modification of custody. See Cleveland,

supra (reversing judgment containing void clause purporting to change

custody arrangement upon child's reaching first birthday). Paragraph 17

of the settlement agreement was an automatic reversionary clause that

was unenforceable as a matter of law. See Daugherty v. Daugherty, 993

So. 2d 8 (Ala. Civ. App. 2008). The trial court erred in expressly adopting

that clause and in deciding the custody of the child based on its

conclusion that the mother had not presented a valid objection to

enforcement of the clause.

The mother argues that the trial court should have decided custody

of the child based on the McLendon standard.2 The McLendon standard

applies when a noncustodial parent seeks modification of a final

judgment that awarded the other parent sole physical custody of his or

2Under the standard set forth in Ex parte McLendon, 455 So. 2d

863 (Ala. 1984), the father, as the noncustodial parent, would have had
to demonstrate that a material change in circumstances had occurred
since the entry of the initial child-custody determination, that a change
to joint physical custody would materially promote the child's best
interests, and that the benefits of the change would more than offset the
disruptive effect of the change in custody. 455 So. 2d at 866. See also Ex
parte Cleghorn, 993 So. 2d 462, 468-69 (Ala. 2008).
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her child. See Whitehead v. Whitehead, 214 So. 3d 367, 370 (Ala. Civ.

App. 2016). On the other hand, when a trial court enters a pendente lite

custody order in an initial child-custody dispute, the McLendon standard

does not apply, and the controversy between the parents over custody

should be decided based on the best interests of the child. Id.

We cannot decide whether the trial court should have applied the

McLendon standard in this appeal. At trial, the parties disputed whether

the initial child-custody determination was a true pendente lite order

that was intended to be in place only during the litigation in the original

civil action or whether it was, in substance, a final judgment that

triggered the application of the McLendon standard, see Rich, supra, but

the trial court did not resolve that dispute; instead, the trial court applied

paragraph 17 of the settlement agreement to decide the custody issue. In

effect, the trial court never addressed the appropriate custody standard

to be applied, and, as a result, this court has no ruling on that issue to

review. Under these circumstances, this court must reverse the final

judgment and remand the case for the trial court to determine and to

apply the appropriate custody standard. See L.W. v. B.C.D., 364 So. 3d

999, 1003 (Ala. Civ. App. 2022).

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Conclusion

For the foregoing reasons, we reverse the final judgment and

remand the case to the trial court for further proceedings consistent with

this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Edwards, Hanson, Fridy, and Lewis, JJ., concur.

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