Rel: July 17, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2026
CL-2026-0089
Julie Kate Conlee
v.
Clark Olin Conlee
Appeal from Madison Circuit Court
(DR-25-351)
EDWARDS, Judge.
In July 2025, Clark Olin Conlee ("the father") filed in the Marshall
Circuit Court a petition seeking to modify the child-custody and childsupport provisions of an April 2018 judgment divorcing him from Julie
Kate Conlee ("the mother"), which had, among other things, awarded the
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parties joint legal custody of the parties' child, A.C. ("the child"), awarded
the mother sole physical custody of the child, and ordered the father to
pay to the mother child support on behalf of the child.1 The father also
filed a motion seeking an award of ex parte temporary emergency custody
of the child, which the Marshall Circuit Court granted. The Marshall
Circuit Court set a pendente lite hearing; however, the mother filed a
motion seeking a transfer of the modification action to the Madison
Circuit Court, which the Marshall Circuit Court granted.
After the transfer of the modification action was accomplished, the
mother filed a motion in the Madison Circuit Court ("the trial court")
seeking guidance regarding whether the father's status as temporary
custodian permitted him to enroll the child in the Arab City School
System. After a hearing on that issue, on August 11, 2025, the trial court
entered an order determining that the child would remain in the custody
of the father pending a September 2025 pendente lite hearing and
allowing the father to enroll the child in the Arab City School System.
1The 2018 divorce judgment had been amended in certain aspects
by a 2020 contempt judgment, including by increasing the father's childsupport obligation, but the provisions relating to custody had remained
unchanged.
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The September 2025 pendente lite order also determined that the child
would remain in the custody of the father pending resolution of the
litigation.
On December 23, 2025, the trial court entered an order awarding
"custody" of the child to the father and visitation to the mother.2 The
2Aswe have explained before, "our legislature defined only five
types of custody a trial court may consider in fashioning a custody
award." Reeves v. Fancher, 210 So. 3d 595, 597 (Ala. Civ. App. 2016).
Those types of custody are set out in Ala. Code 1975, § 30-3-151, as
follows:
"(1) Joint custody. Joint legal custody and joint physical
custody.
"(2) Joint legal custody. Both parents have equal rights
and responsibilities for major decisions concerning the child,
including, but not limited to, the education of the child, health
care, and religious training. The court may designate one
parent to have sole power to make certain decisions while both
parents retain equal rights and responsibilities for other
decisions.
"(3) Joint physical custody. Physical custody is shared
by the parents in a way that assures the child frequent and
substantial contact with each parent. Joint physical custody
does not necessarily mean physical custody of equal durations
of time.
"(4) Sole legal custody. One parent has sole rights and
responsibilities to make major decisions concerning the child,
including, but not limited to, the education of the child, health
care, and religious training.
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modification order did not award child support; instead, the modification
order stated that, "[a]s the father is seeking no child support, none is
ordered," which reflected the father's testimony at trial that he was not
seeking child support from the mother. The modification order failed to
address the father's request at trial that the legal-custody provisions of
the 2018 divorce judgment be modified to award him final decision"(5) Sole physical custody. One parent has sole physical
custody and the other parent has rights of visitation except as
otherwise provided by the court."
This court has concluded that, when one parent is awarded a form
of custody not described in § 30-3-151, like "primary physical custody" or
"primary residential custody" and the other parent is awarded visitation,
we may conclude that the custodial parent was awarded "sole physical
custody." See B.C.H. v. M.H., 323 So. 3d 661, 669 (Ala. Civ. App. 2020)
(interpreting the term "primary residential custody," which was coupled
with an award of standard visitation to the other parent, as an award of
"sole physical custody"); Reeves, 210 So. 3d at 597-98 n.1 ("Parties and
trial courts often use the nonstatutory term 'primary physical custody' in
place of 'sole physical custody' in describing an award of physical custody
to one of the parties. An award of 'primary physical custody' generally, as
in this case, denotes an award of 'sole physical custody' as that term is
defined in § 30-3-151."). As we have cautioned before, the failure to use
the terms set out in § 30-3-151 results in custody judgments that are
"unclear and … serve only to confuse the issue of custody." Harris v.
Harris, 775 So. 2d 213, 214 (Ala. Civ. App. 1999). In the present case, as
discussed infra, the modification order awards the father "custody" and
does not indicate whether the parties retain joint legal custody, creating
significant confusion regarding the scope of the custody award in the
modification order.
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making authority over academic and medical/dental decisions, which the
2018 divorce judgment had assigned to the mother. In addition, the
modification order does not contain a provision denying all relief not
otherwise addressed in the order or a provision indicating that all aspects
of the 2018 divorce judgment not modified remain in effect.
The mother filed a motion seeking reconsideration of the
modification order, which the trial court denied. She then filed an appeal
to this court. Based on the absence of a child-support award, this court
requested letter briefs from the parties regarding the finality of the
modification order.
The father, in his letter brief, contends that the modification order
is not final. He points out that the modification order fails to address his
request that his child-support obligation be terminated and that the
record does not contain any of the necessary child-support forms required
by Rule 32, Ala. R. Jud. Admin. He further contends that the failure of
the trial court to address such issues as the division of the payment of
the child's noncovered medical expenses and which parent would pay
health-insurance premiums renders the modification order nonfinal.
" 'The question whether a judgment is final is a jurisdictional
question, and the reviewing court, on a determination that the
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judgment is not final, has a duty to dismiss the case.'
Hubbard v. Hubbard, 935 So. 2d 1191, 1192 (Ala. Civ. App.
2006) (citing Jim Walter Homes, Inc. v. Holman, 373 So. 2d
869, 871 (Ala. Civ. App. 1979)). '[A] final judgment is a
"terminal decision which demonstrates there has been a
complete adjudication of all matters in controversy between
the litigants." ' Dees v. State, 563 So. 2d 1059, 1061 (Ala. Civ.
App. 1990) (quoting Tidwell v. Tidwell, 496 So. 2d 91, 92 (Ala.
Civ. App. 1986))."
Butler v. Phillips, 3 So. 3d 922, 925 (Ala. Civ. App. 2008). "An order is
generally not final unless it disposes of all claims or the rights and
liabilities of all parties." Carlisle v. Carlisle, 768 So. 2d 976, 977 (Ala.
Civ. App. 2000).
As the mother points out, a trial court's failure to award child
support -- as opposed to failing to resolve a child-support claim -- does not
affect the finality of the modification order. Compare Pitts v. Pitts, 306
So. 3d 890, 895 (Ala. Civ. App. 2020) (explaining that, "[r]egardless of the
merits of the judgment, the denial of child support … did not render the
November 30, 2018, judgment nonfinal"), with Blasdel v. Blasdel, 27 So.
3d 1288, 1290 (Ala. Civ. App. 2009) (concluding that an order that
reserved jurisdiction to award child support in the future after the
occurrence of a specified event was not a final judgment because of the
failure to adjudicate the child-support claim), and Tomlinson v.
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Tomlinson, 816 So. 2d 57, 58 (Ala. Civ. App. 2001) (concluding that an
order that reserved jurisdiction to award child support in the future after
the parties submitted the appropriate child-support forms was not a final
judgment because of the failure to adjudicate the child-support claim). In
the present case, the father withdrew his request that the mother pay
child support at the trial, and the trial court memorialized that
withdrawal in the modification order.3 At the time of the entry of the
modification order, no child-support claim against the mother was
pending for the trial court to resolve.4
3Certainly, as our supreme court has stated, " 'the right to support
of a child from its parents is inherent and cannot be waived by the
parents even by agreement.' " Ex parte State ex rel. Summerlin, 634 So.
2d 539, 542 (Ala. 1993) (quoting Willis v. Levesque, 402 So. 2d 1003, 1004
(Ala. Civ. App. 1981)). We have indicated that a parent's failure to
request child support does not affect the other parent's duty to pay child
support on behalf of his or her child. Blasdel v. Blasdel, 27 So. 3d 1288,
1290 n.4 (Ala. Civ. App. 2009).
4We further note that the record contains no evidence relating to
the parties' incomes upon which the trial court could have based a childsupport award, presumably because the father did not seek an award of
child support. Because child support was not at issue, any failure of the
parties to file the child-support forms required by Rule 32, Ala. R. Jud.
Admin., would be, if error at all, harmless error. See Rule 45, Ala. R.
App. P.
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Insofar as the father contends that the modification order was
rendered nonfinal based on the trial court's failure to address such issues
as the division of the payment of the child's noncovered medical expenses
and which parent would pay health-insurance premiums, we disagree.
We note that such issues are connected to an award of child support. See
Rule 32(A)(4) ("All orders establishing or modifying child support shall,
at a minimum, provide for the children's health-care needs through
private or public health-care coverage and/or cash medical support.");
Comment to Rule 32 (As Amended to Conform to Amendments Effective
October 4, 1993) ("The Schedule of Basic Child Support Obligations
assumes that a family of four will have approximately $200 in
unreimbursed medical expenses each year. … Courts and parties may
wish to consider whether noncovered medical and/or dental expenses
should be allocated in the same percentages as the health insurance
premiums are allocated pursuant to this rule and as entered on the Child
Support Guidelines form (Form CS-42).");5 see also West v. Rambo, 786
5The 2009 and 2022 amendments to Rule 32 have increased the
amount of assumed unreimbursed medical expenses each year to $250.
See Comment to Amendments to Rule 32 Effective January 1, 2009;
Comment to Amendments to Rule 32 Effective March 1, 2009; and
Comment to Amendments to Rule 32 Effective May 1, 2022.
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So. 2d 1138, 1142 (Ala. Civ. App. 2000). Because the husband withdrew
his request for child support and because he did not make any argument
at trial regarding health insurance or the division of the payment of
uncovered medical expenses, those issues were not presented to the trial
court for decision and therefore were not left unresolved by the
modification order.
We also reject the father's argument that the modification order is
not a final judgment based on the failure of the trial court to adjudicate
his request that his child-support obligation under the 2018 divorce
judgment, as amended by the 2020 contempt judgment, see note 1, supra,
be terminated. This court has held that, when a former noncustodial
parent becomes a custodial parent under a judgment, his or her
obligation to pay child support is "effectively terminated" and that the
former custodial parent is "no longer entitled to child support."
Cunningham v. Cunningham, 480 So. 2d 1238, 1241 (Ala. Civ. App.
1985).6 Thus, the trial court's failure to specifically address the father's
6We recognize that the father in Cunningham v. Cunningham, 480
So. 2d 1238 (Ala. Civ. App. 1985), became the custodial parent under
what appears to be a reversionary clause in the parties' divorce judgment,
480 So. 2d at 1240, and that custodial reversionary clauses are disfavored
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request to terminate his child-support obligation under the 2018 divorce
judgment, as amended by the 2020 contempt judgment, does not affect
the finality of the modification order.
However, as the father points out in his letter brief, the father
specifically requested at trial that the legal-custody provisions of the
2018 divorce judgment be modified so as to grant him final decisionmaking authority over academic and medical/dental decisions concerning
the child.7 The modification order awards the father "custody" and
awards the mother visitation, which we interpret as an award of "sole
and are considered to be ineffective because they are based on speculation
regarding the child's future best interests. See Bird v. Bandy, 192 So. 3d
1165, 1169 (Ala. Civ. App. 2015), and Hovater v. Hovater, 577 So. 2d 461
(Ala. Civ. App. 1990). Nonetheless, the principle that the placement of a
child in the sole custody of the former noncustodial parent extinguishes
that parent's former child-support obligation is not affected by the
impropriety of the provisions of the divorce judgment at issue in
Cunningham.
7The mother did not object to the father's request; thus, that issue
was tried by the implied consent of the parties. See Rule 15(b), Ala. R.
Civ. P.; T.C.S. v. D.O., 156 So. 3d 418, 421 n.1 (Ala. Civ. App. 2014)
(determining that a claim seeking an award of joint legal custody was
tried by the implied consent of the parties because, although the mother
had not pleaded such a claim, "on the last day of the hearing, however,
the mother expressly sought an award of joint legal custody, and the
father did not object to the mother's presentation of evidence on that
claim").
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physical custody" to the father as defined in Ala. Code 1975, § 30-3-151(5), see note 2, supra, but the modification order does not address the
father's request to modify the legal-custody provisions of the 2018 divorce
judgment. In fact, other than reciting the fact that the 2018 divorce
judgment awarded the parties joint legal custody, the modification order
does not mention the term "legal custody" at all. As previously noted, the
modification order contains neither a provision indicating that all aspects
of the 2018 divorce judgment not modified by the modification order
remain effective nor a blanket denial of any claims not addressed in the
modification order. Thus, the father's request to be awarded final
decision-making authority over academic and medical/dental decisions
concerning the child remains unadjudicated.
" ' "When it is determined that an order appealed from is not a final
judgment, it is the duty of the Court to dismiss the appeal ex mero
motu." ' " J.M.M. v. J.C., 50 So. 3d 1076, 1078 (Ala. Civ. App. 2010)
(quoting Young v. Sandlin, 703 So. 2d 1005, 1008 (Ala. Civ. App. 1997),
quoting in turn Powell v. Republic Nat'l Life Ins. Co., 293 Ala. 101, 102,
300 So. 2d 359, 360 (1974)). The trial court failed to adjudicate the
father's request that aspects of the legal-custody provisions of the 2018
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divorce judgment be modified, which prevents the modification order
from being a final judgment capable of supporting this appeal. See S.J.H.
v. N.T.S., 301 So. 3d 843, 848 (Ala. Civ. App. 2020). Accordingly, the
mother's appeal is dismissed.
APPEAL DISMISSED.
Moore, P.J., and Hanson and Fridy, JJ., concur.
Bowden, J., concurs in the result, without opinion.
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