VON OEPEN v. TRAMMELL, 29 So.3d 239 (Ala.Civ.App. 2009)

David VON OEPEN v. Beth Von Oepen TRAMMELL.

No. 2080057.Court of Civil Appeals of Alabama.
July 17, 2009.

Appeal from Mobile Circuit Court (No. DR-01-500284.01); J. Donald Banks, Judge.

Thomas H. Nolan, Jr., of Wright, Green, P.C., Mobile; and Claude D. Boone, Mobile, for appellant.

Lee L. Hale, Mobile, for appellee.

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 Griggs 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.

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

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principal 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.