An orphan is a vulnerable child left without adequate familial provision and protection from evil. There is real evil in the world – evil that will always seek to abuse, neglect, and rob vulnerable children. Orphan Law is that body of law that relates to addressing and alleviating the affliction of these vulnerable children.
This week, Alabama’s appellate courts released one new opinion that affects orphans and their families.
Sometimes winning or losing a case on appeal boils down to whether the appellate court will stay within its delegated boundaries. L.M. v. K.A., 2131000 (Ala. Civ. App. February 20, 2015), written by Judge Thomas, gives us a glimpse into the importance of two such boundaries. The first boundary for today’s discussion is this: “‘[e]vidence or assertions of fact contained in the briefs of the parties, but not included in the record presented on appeal, may not be considered by this court.'” One of the briefs submitted to the court asserted an out-of-court statement of the opposing party to support the argument being made. The Court of Civil Appeals (Civs) used the boundary marker to dismiss this argument.
Why is this boundary important? The main reason, as explained more fully in the second boundary discussed below, is that the appellate court’s role is to evaluate whether or not the trial court made the right decision. In order for the appellate court to make that determination, it must only consider the evidence that was appropriately presented to the trial court. This evidence is contained in the record, which consists of the transcript of proceedings and all papers filed with the court.
The second boundary revolves around the question of how much deference the appellate court should give to the trial court’s determinations. Judge Donaldson dissented from the main opinion based on the argument that the appellate court should give more weight to the trial court’s determinations. In dissenting from the main opinion, Judge Donaldson stated that “The question presented on appeal is not whether the appellate court views the visitation order to be in the best interest of the child, but whether the appellant has established that the trial court’s finding that the order is in the best interest of the child is ‘clear or palpable error, without the correction of which manifest injustice will be done.’”
The standard that Judge Donaldson is suggesting should be applied is the ore tenus presumption of correctness, which basically prescribes that the rulings of the trial court should not be disturbed unless they are manifestly unjust, palpably wrong, or without supporting evidence. I hope this dissent signals a change of heart for Judge Donaldson – because the ore tenus presumption of correctness was lamentably absent in his recent opinion, I.B. v. T.L.N. and C.B.N.
The most relevant holding out of L.M. v. K.A. for the orphan-law community is this: if Parent A is receiving child support from Parent B, and Parent A has granted guardianship of the child to the child’s grandparents (at the time the child-support order is issued), Parent B will not be responsible for child support. Furthermore, any payments that Parent B has made to Parent A after said guardianship has been granted must be reimbursed to Parent B.
However, Parent B should take caution: Parent B is not permitted to unilaterally cease payment of child support; Parent B must get authorization from the trial court.
Also relevant to the court’s decision on this issue was the fact that Parent A did not tell the trial court, at the time the child-support order was entered, that the grandparents had been given guardianship of the child. Furthermore, it appeared that Parent B’s signature had been forged to effectuate the guardianship.
The takeaway from this significant fact is that the court has very little patience for dishonesty and fraud. All persons involved in orphan-welfare issues should beware – a person who comes with unclean hands has little ground to stand on. And in light of the trial court requiring Parent A to pay legal expenses to Parent B, we can conclude that a person who comes with unclean hands may lose the little ground they do have.
The second substantial holding from this case provides an outer limit for visitation that a trial court may prescribe. The Civs overturned the trial court’s visitation plan because the Civs thought that requiring a 7-year-old child to fly alone at least twice a month from Colorado to Alabama was not in the child’s best interest.
Practitioners can look to this case as an outward indication of a trial judge’s freedom in setting an equitable visitation schedule, an affirmation of the importance of coming to the court with clean hands, and a caution of the potential consequences to child-support obligations when the receiving parent relinquishes guardianship.
Photo by libertygrace0.