Murphy v. Murphy, [Ms. 2160601, Oct. 20, 2017] __ So. 3d __ (Ala. Civ. App. 2017). This decision by Judge Thomas (Pittman and Donaldson, JJ., concur; Moore, J., concurs in the result; and Thompson, P.J., recuses) reverses the trial court’s judgment in a divorce action in which the court awarded primary physical custody of the child to the mother and awarded the mother a $10,000 attorney’s fee.
The Jefferson Circuit Court had refused to allow the father to offer testimony in support of an award to the father of sole physical custody of the child because the father had not filed a counterclaim seeking custody. Ms. *3. The court reversed, concluding that, pursuant to § 30-3-1, Ala. Code 1975, “upon 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 ....” Ms. *3. The court concluded that § 30-3-1 allowed the father to put on evidence in support of a claim for custody of the child notwithstanding the lack of a counterclaim by the father seeking custody.
The court also reversed the trial court’s award of a $10,000 attorney’s fee for the mother in view of a prenuptial agreement providing that in the event of divorce, “neither party shall have any right or claim against the assets or estate of the other ... for attorney’s fees[,] court costs, [or] legal expenses.” Ms. *7.