Henry Grant and Mercedes Grant were divorced by the Chambers Circuit Court on January 15, 1997. The court awarded custody of the parties' two minor children to the wife. The husband petitioned for a rule nisi, a modification, and for certain ex parte relief on August 29, 1997; after a hearing on the petition, the trial court awarded custody to the husband pending a final hearing. The wife's attorney withdrew from the case in April 1998, and on September 12, 2000, the wife filed a motion to set the matter for a final hearing. The court held a hearing, at which the parties presented testimony ore tenus. At the conclusion of that hearing, the court denied the husband's motion for a modification of the custody order and awarded custody of the children to the wife. The husband moved to alter, amend, or vacate the court's order, or, in the alternative, for a new trial. The court denied his motion. The husband appeals.

The husband argues that the passage of time, from the trial court's order of September 29, 1997, awarding custody of the children to the husband pendente lite, and the wife's September 13, 2000, filing of *Page 825 a motion to set for trial — time that the children were with the father — should somehow shift to the mother the burden of meeting the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala. 1984); i.e., he argues that because the children were with him on a pendente lite basis for that period the wife should be treated as the party seeking now to change custody. The father cites no caselaw in support of his argument, but asks that, on equitable principles, including the doctrine of laches, we change the rules in this case and apply theMcLendon standard against the custodial parent. The husband's second argument, really an extension of the first, is that we should consider the trial court's pendente lite order as a temporary custody order for purposes of review; doing so, he says, would allow us to apply theMcLendon standard against the wife, who would then be the noncustodial parent. The husband cites Brothers v. Brothers, 628 So.2d 776 (Ala.Civ.App. 1993), for the proposition that we have previously elected to treat a pendente lite order as a temporary order. Brothers is inapposite to this case for a variety of reasons, among them the fact that in Brothers the seriousness of the mother's allegations made on appeal and the fact that the Department of Human Resources was involved in that case show that there was some grave or emergency reason for this court to make that election. We see no similarity between Brothers and the case now before us, and we reject this argument.

As to the more general argument, we have long held to the proposition that the entry of a pendente lite order does not shift the McLendon burden of proof. Ex parte R.C.L., 627 So.2d 920 (Ala. 1993), Sims v. Sims,515 So.2d 1 (Ala.Civ.App. 1987). The husband argues that the passage of time alone should reverse the rule — that because the McLendon standard was intended to prevent frequent disruptions in the lives of children, the wife's waiting for almost three years before requesting a final hearing should allow us to impose on her the McLendon burden of proof. The trial court's order of November 8, 2000, notes that the wife had had a dispute with her attorney and that the attorney had withdrawn from her case approximately six months later. Regardless of the wife's reasons for not seeking a final hearing earlier, the husband's argument is fatally flawed for one obvious reason: any prejudice or harm to the children by this late filing could have been alleviated by the husband's doing what he argues the wife should be penalized for not doing; he could have, at any time, asked for a final hearing to determine custody.

With respect to the analysis put forth in the dissent, we believe that this majority opinion disposes of the appeal on the basis of the issue presented to both the trial court and this court. We have previously held that this court may not reverse a judgment based on an issue that has not been raised either in the trial court or in this court. Pate v. BillyBoyd Realty Constr., Inc., 699 So.2d 186 (Ala.Civ.App. 1997). An issue that is not raised on appeal is waived. Pardue v. Potter, 632 So.2d 470 (Ala. 1994); Deutcsh v. Birmingham Post Co., 603 So.2d 910 (Ala. 1992).

This court has long held that a trial court's judgment based on ore tenus evidence will not be reversed unless the evidence shows that the judgment is plainly and palpably wrong. Crane v. Crane, 392 So.2d 242 (Ala.Civ.App. 1980). Additionally, the modification of a child-custody order is a matter vested within the sound discretion of the trial court, and on appeal its findings are presumed correct. Murphy v.Murphy, 479 So.2d 1261 (Ala.Civ.App. 1985). *Page 826

Based on the facts of this case, the arguments of the parties, and the relevant caselaw, we affirm the judgment of the trial court.

AFFIRMED.

Yates, P.J., and Crawley and Thompson, JJ., concur.

Murdock, J., dissents.

The issue in this case is whether the trial court applied the correct legal standard to the evidence in ruling upon the father's petition for a change of custody. The father points out that the presumption recognized in Ex parte McLendon, 445 So.2d 863 (Ala. 1984), in favor of the parent with physical custody is a "rule of repose" condemning "frequent disruptions" in the lives of children "whose welfare is paramount." 445 So.2d at 865. He argues that the trial court in this case erred in extending the benefit of the McLendon presumption to the mother and that, instead, he should have had the benefit of the McLendon presumption.

The father emphasizes the unique facts of this case — that for more than three consecutive years immediately prior to trial, and 39 of the 47 months since the trial court's original divorce judgment, the children lived with him, rather than with the mother. The father argues that "[t]he historical and well documented reasoning for . . . theMcLendon standard was to condemn frequent disruptions in the lives of children," and that "[i]n this case the children have lived happily with the father" for over 80% of the time since the divorce. According to the father, "[i]f this court were to condone a respondent such as this mother allowing such a great amount of time to pass without any efforts to secure custody[,] then this court would be violating the spirit of the reasoning behind McLendon." Moreover, the father argues that this court should "recognize that it would be inequitable, unjust, unfair, and in violation of the spirit of McLendon to reward the inactivity and lack of prosecution of her rights by the mother in this case with the protection provided by McLendon." The father concludes that "the passage of time coupled with the failure to prosecute her rights should trigger theMcLendon standard against the mother in this fact-specific setting."

In support of his appeal, the father also notes that "the intention ofMcLendon . . . was to condemn interruption in the lives of children and to provide stability." He also states that "[i]t would seem amiss for this court to penalize the de facto custodial parent with the rule designed to protect the custodial parent." After arguing that theMcLendon presumption should be applied in his favor, not the mother's, the father asks that "the decision of the trial court . . . be reversed and the case sent back for a new trial with the equitable and just presumptions placed as they should be upon the respective parties."

To the extent the father argues that the mother should not "equitably and justly" be entitled to the McLendon presumption under the specific facts of this case, I believe there may be merit in his position.¹ *Page 827

As articulated in McLendon, the creation of an enhanced presumption in favor of a custodian over a noncustodial parent requires the satisfaction of each of two elements. First, in order to overcome the noncustodial parent's prima facie right to the custody of his or her child (see Exparte Terry, 494 So.2d 628 (Ala. 1986)), there must be either "a voluntary forfeiture of custody or a prior decree removing custody from the natural parent." McLendon, 455 So.2d at 865 (emphasis added); Sims v. Sims,515 So.2d 1, 2 (Ala.Civ.App. 1987) (McLendon presumption requires "either voluntary relinquishment . . . or [a] prior judicial decree" (emphasis added)).² Second, the voluntary forfeiture or judicial decree must have "been acted upon by [the custodian] to the manifest interest and welfare of the child." McLendon, 455 So.2d at 865. As our Supreme Court explained, this second element is a function of the fact that the McLendon presumption is

"`a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child's healthy growth into adolescence and adulthood.'"

As to the first McLendon element, and as the majority indicates, our appellate courts have held that although a "custody award" (i.e., a determination of custody generally intended to last until one of the parties successfully petitions the court to modify its judgment, even where the custody may be called "temporary" by the trial court) is a "final judgment" and constitutes a "prior judicial decree" for McLendon purposes, a "pendente lite custody" order is not final and does not constitute a "prior judicial decree" under McLendon. See Ex parte J.P.,641 So.2d 276 (Ala. 1994) (explaining terms in quotation marks in preceding sentence); Sims v. Sims, 515 So.2d 1 (Ala.Civ.App. 1987); Davisv. Moody, 459 So.2d 914 (Ala.Civ.App. 1984). In this case, there is no final judgment awarding custody to the father, only an award of custody pendente lite. Nor does it appear from the father's brief that the father argues to this court that the mother's actions or her inaction during the three-plus years this litigation was pending prior to trial constituted a "voluntary relinquishment" of the child for purposes of the McLendon analysis. An issue not raised on appeal is waived. Pardue v. Potter,632 So.2d 470 (Ala. 1994).³ *Page 828

However, although the father in this case may not be entitled to the benefit of the McLendon presumption, the mother also may not be entitled to that presumption under the peculiar facts of this case. In short, this is a unique case in which the father has satisfied the second McLendon element, but not the first, and in which the mother has satisfied the first McLendon element, but perhaps not the second.

Over three years passed following the trial court's pendente lite order placing the children in the custody of the father. During this time, the father apparently "acted upon" his custody of the children to their "manifest interest and welfare." For over three years, the children presumably realized the "benefit of stability" and "put down into [their] environment those roots necessary for [their] healthy growth." As the trial court expressly found, "both parents love the children and . . . both want the best for the children," and the advantages in this case of awarding custody to the father "would outweigh the disruption inherent in a change in custody . . . since the children have been in their father's custody for some period of time."⁴

The material point for purposes of the issue presented in this case, however, is that during this same three-plus-year period in which the children were presumably realizing "stability" and "putting down roots" in their relationships and in the physical environment created by the father, they were not doing so with the mother. Although the mother had physical custody of the children for a number of months after the parties' divorce in January 1997, for more than 80% of the time since the parties' divorce the children did not live with the mother.

In his writing in Ex parte K.T.G., 749 So.2d 458 (Ala. 1999), Chief Justice Hooper addressed the applicability of the McLendon standard: *Page 829

"The rationale behind the [enhanced] McLendon standard is to prevent children from being uprooted from a stable home unless the move will substantially benefit the child. In the present case, the child did not live with the parent who had legal physical custody, but had always lived with the petitioning parent. The rationale of McLendon is inapplicable because the child would not be uprooted if the petitioning parent were given legal physical custody."

749 So.2d at 459 (Hooper, C.J., concurring specially) (emphasis added).See also Ex parte Weiss, 718 So.2d 44, 45 (Ala. 1998) (Maddox, J., dissenting from the denial of certiorari review, joined by Hooper, C.J.) (recognizing the policy underlying McLendon as seeking to minimize disruption for the child, and questioning whether the McLendon standard should apply when that purpose is not served). As I noted in Pickett v.Pickett, 792 So.2d 1124 (Ala.Civ.App. 2001), "the stable, nurturing environment that the McLendon presumption seeks to protect is a function of a child's real-life experience — in his relationships and with his physical environment — not of abstract legal rights of which the child likely has no awareness." 792 So.2d at 1133-34 n. 5 (Murdock, J., concurring specially). See also C.L.C. v. J.D.A., 690 So.2d 365, 368 (Ala.Civ.App. 1996) (Monroe, J., dissenting and noting that "[a]s a practical matter, whether a prior judgment exists has little or no relevance to a child who must leave a familiar home and family if custody is changed").

In the present case, the stable home, nurturing relationships, continuity, and familiar physical environment and community, the protection of which is the whole purpose for the McLendon presumption, may not have existed with the mother. Shifting formal custody of the children to the father arguably would not have the "inherently disruptive effect caused by uprooting . . . child[ren]" from the secure, established relationships and environments with which the McLendon presumption is concerned. In this case, the children's "roots" arguably were not in the mother's home.⁵

In reaching this conclusion, I acknowledge that this court held inSims, supra, that a parent cannot benefit from a pendent lite order toobtain the McLendon presumption for himself or herself; however, it is clear that a pendente lite order can have the practical effect of preventing a parent from "acting upon" a prior custody order and establishing a secure, stable relationship and home environment for the child. If the issue were one of the parents' rights, and a parent were thereby prevented from satisfying this second element necessary to give rise to the McLendon presumption, then one might argue that a parent should not be "prejudiced" by an unappealable pendente lite order. However, it is not a question of parents' rights; it is a question of what is in the child's best interests. The McLendon presumption is forthe benefit of the child, not the parent. When, for whatever reason, a stable, nurturing home in which the child has put *Page 830 down roots necessary for his or her healthy growth does not exist with a particular parent, there is no "inherently disruptive effect" in not awarding physical custody of the child to that parent; the McLendon presumption logically cannot apply in such a case.

Accordingly, the McLendon presumption should not necessarily have been applied in this case. I would remand for further proceedings or findings consistent with this dissent, including a determination by the trial court as to whether the original custody judgment was "acted upon by [the mother] to the manifest interest and welfare of the child" so as to satisfy the second element necessary to give rise to the McLendon presumption in her favor.