Murphy v. Forney, 1180478

295 So.3d 35 (Mem)

Morgan MURPHY

v.Marjorie FORNEY

1180478

Supreme Court of Alabama.

September 13, 2019

Mark Hoffman, Birmingham, for appellant.

Emily Sides Bonds of Jones Walker LLP, Birmingham, for appellee.

PER CURIAM.

AFFIRMED; NO OPINION.

Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur.

Sellers, J., dissents.

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 an award of sole physical custody of the child to him."

Murphy v. Murphy, 253 So. 3d 403, 406 (Ala. Civ. App. 2017).

On remand, the trial court conducted another hearing, and, based on the evidence presented, it entered a judgment awarding the husband and the wife "shared legal and physical custody" of the child.

Forney thereafter moved the trial court, pursuant to Rule 12(c), Ala. R. Civ. P., for a judgment on the pleadings in the legal-malpractice action; that motion was converted to a motion for a summary judgment pursuant to Rule 56(c), Ala. R. Civ. P. In response, the husband reasserted his argument that Forney's alleged malpractice in failing to assert a counterclaim for sole physical custody of the child proximately caused him to suffer damage. The husband attached to his response the affidavit of a similarly situated attorney, who testified as follows about the standard of care in the divorce proceeding, and his opinion concerning the breach thereof:

"I am familiar with the standard or duty of care of divorce attorneys practicing in and around Jefferson County, Alabama. In a divorce action, if a respondent spouse desires full or partial physical custody of a child, that spouse's divorce attorney should file a counterclaim (or counter-complaint) seeking physical custody. That is routine and standard practice for Jefferson County divorce attorneys. It would be a breach of the standard or duty of legal care for the respondent spouses's attorney to fail to assert a counterclaim seeking physical custody in the responsive pleading.

"....

"It is my opinion that [Forney] in this case breached the aforementioned standard of care in this case by failing to assert a counterclaim for custody for [the husband]. Further, it is foreseeable that the presentation [of] evidence regarding the respondent spouse's desire for custody may be denied by a court if a counterclaim (or counter-complaint) for custody is not formally asserted.

"Had [Forney] made a counterclaim for custody for [the husband], the trial judge would have

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