When is a claim for custody so frivolous, so groundless, that the party filing it should pay the other party’s attorney fees for defending it? That’s the question the Alabama Court of Civil Appeals faced in Scarbourough v. Darling, Case No. 2040659 (Ala. Civ. App. June 30, 2006).
The parties were already divorced. The father was disabled as the result of a closed head injury that affected his memory and concentration. After the father moved to California, the court awarded custody to the father despite his disability, partially because the father’s grandmother lived with him and helped him care for the child. The decree required the father to notify the mother if he stopped living with the grandmother or if her health declined to the point that she could no longer help the father care for the child.
In March, 2004, the father’s grandmother was diagnosed with colon cancer, and a short time later with acute leukemia. Her medical treatment required several hospitalizations. The child traveled to Alabama to visit with the mother in mid-June, 2004. Four days before the mother was to return the child to the father, she filed a petition to modify custody and a request for pendente lite relief, citing the grandmother’s inability to help the father care for the child. The trial court entered an ex parte order awarding the mother pendente lite custody.
The father answered the mother’s petition and conterclaimed for attorney fees under the Alabama Litigation Accountability Act, Ala. Code Â§12-19-270 et seq. (“the ALAA”). The ALAA requires the court to award attorney fees against any party who files a civil action or claim “without substantial justification.” Ala. Code Â§12-19-271 defines “without substantial justification” as “frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose . . .”
After an ore tenus hearing in November, 2004, the trial court ruled that the mother had not met her burden under Ex parte McLendon and that her petition to modify was due to be denied. The trial court then heard testimony about the father’s attorney fees and costs pursuant to the ALAA and established the father’s attorney fees and costs at $24,201.76.
After the mother’s postjudgment motion to alter, amend, or vacate was denied by operation of law, she appealed on the issue of attorney fees and costs. The mother did not appeal the denial of her petition to modify.
The appeals court’s ruling was simple.
On the record before us, we do not think it can be concluded that the mother’s petition seeking a change of custody was frivolous, groundless in law or in fact, or interposed merely to vex the father or for other improper purposes. Accordingly, we reverse that portion of the trial court’s judgment awarding attorney fees and costs to the father under the ALAA. See Dickerson v. Dickerson, 885 So. 2d 160, 168 (Ala. Civ. App. 2003).
The appeals court specifically stated that (1) the paternal great-grandmother’s help was a material factor in the trial court’s earlier award of custody to the father; and (2) the paternal great-grandmother’s help was jeopardized by her cancer and leukemia and by the multiple hospitalizations required to deal with it.
Because the paternal great-grandmother’s assistance to the father was important to the care of the minor child and was a material factor in the minor child’s placement with the father, and because the paternal great-grandmother’s ability to provide such assistance was substantially put into question by her illness, it cannot be concluded that the mother’s petition, based as it was on the fact of the paternal great-grandmother’s declining health, was so frivolous, groundless in law, groundless in fact, vexatious, or improper that the mother should be forced to pay the father’s attorney fees and costs pursuant to the ALAA for having sought a custody modification.
The appeals court reversed the trial court’s judgment awarding attorney fees and costs and remanded the case. The appeals court rejected the father’s argument that the attorney fee award could be justified on equitable grounds. The appeals court said it could have affirmed the trial court on any ground developed in or supported by the record but that the father had never asserted any equitable grounds in the trial court.