Constitutionality of Statute Considered Only If Essential to Appeal

The Court of Civil Appeals refused to consider a statute’s constitutionality, where deciding the constitutional question was not necessary to resolving the appeal. Nichols v. Nichols, No. 2060417 (Ala. Civ. App. Jan. 18, 2008).

This case involved a mother’s attempt to modify a divorce judgment so that she could move her minor daughter out of Alabama. The child’s father objected. The touchstone question was whether the proposed move would be in the girl’s best interest. The trial court began by applying Ala. Code § 30-30-169.4. This statute creates a rebuttable presumption that changing a child’s principal residence is not in the child’s best interest. The trial court found that the mother had overcome this presumption. The burden of proof then shifted to the father, who successfully demonstrated that moving would not be in the child’s best interest. The court entered a judgment refusing to change the young girl’s residence and the mother appealed.

Before the Court of Civil Appeals, the mother argued, among other things, that § 30-30-169.4 is unconstitutional. She specifically urged that the presumption created by that statute trammeled on her rights to due process and to travel.

The Court of Civil Appeals found it unnecessary — indeed, improper — to decide this issue. The court reminded readers of its “duty to avoid addressing . . . the constitutionality of a statute unless doing so is essential to the proper determination of the case.” Here, resolving the constitutional challenge was unnecessary. The mother had not lost because of the statute. To the contrary, she had rebutted the statute’s presumption. The father had then proved, apart from the statute, that moving would not benefit his daughter. “Thus, the father did not prevail because of the presumption; he prevailed because he proved that a change in the child’s principal residence was not in the child’s best interest.” “[T]he result would have been the same” even if the trial court had not applied the presumption. “Therefore, a determination regarding whether the presumption is constitutional is not essential to the proper resolution of this case, and, for that reason,” the Court of Civil Appeals “decline[d] to consider” the issue. The trial court’s judgment was affirmed.