Alabama Court of Civil Appeals, 2009

Von Oepen v. Trammell

Von Oepen v. Trammell
Alabama Court of Civil Appeals · Decided July 17, 2009 · Thompson, Pittman, Thomas, Bryan, Moore
29 So. 3d 239; 2009 Ala. Civ. App. LEXIS 429; 2009 WL 2096238 (Southern Reporter, Third Series)

Von Oepen v. Trammell

Opinion of the Court

THOMPSON, Presiding Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(C), Ala. R.App. P.; Rule 45, Ala. R.App. P.; § 30-3-163 and - 164, Ala.Code 1975; § 30-3-165(a),(b), and (d), Ala.Code 1975; § 30-3-169.4, Ala.Code 1975; Ex parte McGriff, 908 So.2d 1024, 1027 (Ala. 2004); Henderson v. Henderson, 978 So.2d 36, 39, 41-42 (Ala.Civ.App. 2007); Clements v. Clements, 906 So.2d 952, 957 (Ala.Civ.App. 2005); Tatum v. Carrell, 897 So.2d 313, 324 (Ala.Civ.App. 2004); and Giiggs v. Griggs, 638 So.2d 916, 918-19 (Ala.Civ.App. 1994).

Each party has filed a motion seeking to strike portions of a brief submitted to this court by the opposing party. This court considers only matters properly submitted to and considered by the trial court; accordingly, we deny each party’s motion to strike. Toler v. Toler, 947 So.2d 416, 419 n. 2 (Ala.Civ.App. 2006).

PITTMAN and THOMAS, JJ., concur. BRYAN, J., dissents, with writing, which MOORE, J., joins.

Dissenting Opinion

BRYAN, Judge,

dissenting.

This case involves the proposed relocation of the principal residence of a child. The .Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala. Code 1975, sets forth a presumption in § 30-3-169.4, Ala.Code 1975, which states:

“In proceedings under this article ..., there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of *240principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”

Because I disagree that Beth Von Oepen Trammell overcame the presumption found in § 30-3-169.4 so as to shift the burden of proof to David Von Oepen, I respectfully dissent from the no-opinion affirmance, which upholds the trial court’s implicit finding to the contrary. See my special writing in Parker v. Parker, [Ms. 2071226, June 19, 2009] — So.3d -, - (Ala.Civ.App. 2009)(Bryan, J., concurring in the judgment of affirmance in part and dissenting in part).

MOORE, J., concurs.

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