Opinion
CL-2022-1290
09-08-2023
Jennifer Lauren ROBINSON v. Christian Tyler ROBINSON
Shirley Ann Millwood of Millwood Law Firm, LLC, Alexandria, for appellant. John D. Floyd, Gadsden, for appellee.
Shirley Ann Millwood of Millwood Law Firm, LLC, Alexandria, for appellant.
John D. Floyd, Gadsden, for appellee.
EDWARDS, Judge.
On September 8, 2021, Jennifer Robinson ("the mother") filed in the Etowah Circuit Court ("the trial court") a petition seeking to modify the custody and visitation provisions of a judgment that had previously been entered by the trial court, which judgment divorced the mother and Christian Tyler Robinson ("the father") and, according to the testimony presented, awarded the parties joint legal custody of their child, L.R. ("the child"), whose date of birth is November 27, 2013, with the father exercising certain visitation; that petition was assigned case number DR- 900342.03 ("the modification action"). In her modification petition, the mother sought an award of sole custody of the child and alleged that the father was not fit to have unsupervised visitation. Contemporaneously with the filing of the modification petition, the mother also filed a verified motion for ex parte relief, which requested that the father’s visitation with the child be temporarily suspended because, she asserted, the father was not capable of providing a safe and stable environment for the child due to his alleged mental instability. On September 11, 2021, the trial court entered an ex parte order temporarily suspending the father’s visitation; it also scheduled a hearing to take place on September 20, 2021, on whether to extend the ex parte order.
The judgment that is the subject of the modification action is not included in the record on appeal.
The father was served on September 14, 2021, and, on October 15, 2021, he filed an answer to the mother’s modification petition. The hearing that was scheduled on September 20, 2021, was continued to October 6, 2021, and was subsequently rescheduled to December 7, 2021. On November 4, 2021, the father filed a motion requesting an expedited hearing on the ex parte order.
Sometime prior to December 17, 2021, the modification action was consolidated with case number CS-19-900177, an action involving the father and Nicole Noojin ("the Noojin action"), for the purpose of conducting one trial. Although the com- plaint initiating the Noojin action is not included in the record on appeal, the record generally establishes that the father and Noojin share a child, who was the subject of pending litigation at the time the mother in the modification action filed her complaint, and that Noojin had filed in the Noojin action a request to suspend the father’s visitation with their child based on the same factual allegations that had been made by the mother in the modification action.
The order consolidating the actions is not included in the record on appeal. The first reference in the record regarding the cases being consolidated is a December 17, 2021, motion filed by the father in the modification action that contained both case numbers in the style.
Following several continuances, the hearing on the propriety of the ex parte order was scheduled to take place on May 25, 2022. Before taking testimony on that date, the trial court and counsel for the parties conferred regarding the procedural posture of the modification action and the purpose for the hearing. The trial court stated that the hearing was to address "the motion for emergency order that was entered." Counsel for the mother and counsel for the father agreed that the purpose of the hearing was to address the suspension of the father’s visitation pursuant to the trial court’s September 11, 2021, ex parte order.
The record on appeal does not contain an "emergency order"; however, the record generally establishes that Noojin filed a "[m]otion requesting an emergency order" to suspend the father's visitation in the Noojin action. It appears from the record that the trial court used the terms "ex parte order" and "emergency order" interchangeably to refer to orders that it entered after the filing of the requests of the mother and of Noojin for emergency or ex parte orders to suspend the father’s visitation.
Because testimony did not conclude on May 25, 2022, the hearing was carried over to a second day of testimony that occurred on August 4, 2022. Before taking testimony on August 4, 2022, the trial court clarified that the hearing was a "continuation" of the May 25, 2022, hearing and stated that the purpose of the hearing was "the final hearing on that [e]x [p]arte [m]otion."
Despite the consensus that the scope of the May 25, 2022, and August 4, 2022, hearing was limited to evidence relating to whether to continue the ex parte order suspending the father’s visitation with the child, on October 18, 2022, the trial court entered a "Final Order" that stated that the matter was before the court on "modification of visitation" and, among other things, established an alternating weekend-visitation schedule for the father and denied all other requested relief that had not been specifically granted. The trial court entered both an "Amended Final Order" and a "Second Amended Final Order" on November 15, 2022.
The trial court entered the "Amended Final Order" following the filing in the Noojin action of a postjudgment motion by Noojin and a response by the father. Noojin’s postjudgment motion is not included in the record on appeal.
In the "Second Amended Final Order," the trial court corrected the start date for the father’s visitation from "October 21, 2023," to "October 21, 2022." See Rule 60(a), Ala. R. Civ. P. (providing that a trial court may, on its own motion, correct a clerical error in its judgment).
On November 17, 2022, the mother filed a postjudgment motion arguing, among other things, that the trial court had erred in entering a final judgment without conducting a trial; she requested that the final judgment be vacated, and that the modification action be set for a "final trial." Although the mother had requested a hearing on her postjudgment motion, the trial court entered an order on November 18, 2022, denying the mother’s postjudgment motion without conducting a hearing on the same. The mother timely appealed.
The mother makes four arguments on appeal; however, we conclude that the mother’s argument that the trial court erred in entering a final judgment after conducting a hearing on only the issue of whether to continue the ex parte order temporarily suspending the father’s visitation is dispositive of this appeal.
[1] It is well settled that
" ‘[a] parent is entitled to due process in proceedings involving the custody of a child.’ Strain v. Maloy, 83 So. 3d 570, 571 (Ala. Civ. App. 2011). In Strain v. Maloy, supra, this court explained:
" ‘ "In dealing with such a delicate and difficult question -- the welfare of a minor child -- due process of law in legal proceedings should be observed. These settled courses of procedure, as established by our law, include due notice, a hearing or opportunity to be heard before a court of competent jurisdiction."
" ‘Danford [v. Dupree], 272 Ala. [517,] 520, 132 So. 2d [734,] 735-36 [(1961)]. As this court has further explained:
" ‘ "[P]rocedural due process contemplates the basic requirements of a fair proceeding including an impartial hearing before a legally constituted court; an opportunity to present evidence and arguments; information regarding the claims of the opposing party; a reasonable opportunity to controvert the opposition’s claims; and representation by counsel if it is desired."
" ‘Crews v. Houston Cnty. Dep’t of Pensions & Sec., 358 So. 2d 451, 455 (Ala. Civ. App. 1978) (emphasis added).’ "
Gilmore v. Gilmore, 103 So. 3d 833, 834-35 (Ala. Civ. App. 2012).
[2] In this case, the record establishes that the trial court had scheduled and continued, on several occasions, a hearing on the issue of continuing the ex parte order suspending the father’s visitation with the child. Based on the colloquy that took place at the beginning of the May 25, 2022, hearing, it was the understanding of the trial court, the mother, and the father that the scope of the May 25, 2022, hearing was the propriety of continuing the suspension of the father’s visitation accomplished by the entry of September 11, 2021, ex parte order:
"THE COURT: We are here in this afternoon [on the Noojin action], as well as [on the modification action]. … The Court set a hearing in this matter after suspending [the father’s] visitation, it looks like, back in, was it September [2021] when it was suspended?
"[NOOJIN’S COUNSEL]: Yes, sir.
"THE COURT: Yeah, I know we have had hearings scheduled a couple of times since then that have been continued for various reasons. But at any rate, I think we are here to -- that was done on an emergency petition that had been filed, I think, in both cases, if I’m not mistaken. But at any rate, Jennifer, if you want to swear in the parties.
"….
"THE COURT: All right. Okay. So I guess the current status of [the father’s] visitation is still suspended and so we’re here to, I guess, have a hearing on the emergency petition?
"[NOOJIN’S COUNSEL]: Yes, sir.
"[THE MOTHER’S COUNSEL]:
Your Honor, if I may, so I represent [the mother]. We filed a petition for modification in her case on September the 8th, 2021. And Your Honor granted an ex parte motion, and then we had a hearing thereafter, and you, kept the ex parte order in effect. It is my understanding well, since then, our case has been consolidated with Ms. Noojin’s and [the father’s] case for purposes of judicial economy. But it has been consolidated for purposes of trial. It is my understanding we are here today on a final trial.
"THE COURT: I have it set for a hearing on the motion for emergency order that was entered.
"[NOOJIN’S COUNSEL]: Yes, sir. It was set on mine. And then she filed -- she had filed a new petition. And then her petition was set today, as well. So because they deal with the same
"THE COURT: If I recall was there not a just kind of like a shadow motion that was filed?
"[THE MOTHER’S COUNSEL]: Yes, Your Honor.
"THE COURT: You basically filed something adopting what was [Noojin’s counsel] had pled in her emergency motion, which I granted in both cases.
"[THE MOTHER’S COUNSEL]: Yes, Your Honor. And like I’m -- we’re not objecting to the consolidation. I mean, obviously, it promotes judicial economy. We’re going to have all of the same witnesses, very similar fact scenarios. I just - - I was under the impression we were here for the final trial today.
"THE COURT: Okay. My order, let me see if I have it in both cases.
"[NOOJIN’S COUNSEL]: Judge, while you are looking at this?
"THE COURT: Yes.
"[THE FATHER’S COUNSEL]: Judge, to be frank, what has happened is, we never really had a hearing on the issue of suspension of visitation. And that is what has been continued multiple times. I mean, both sides. I mean, I know it has been continued by me on a couple of occasions with my father passing away and some other things. There has also been some times we have -- it was requested] by the Plaintiff or the Defendant -- by the Petitioner. So it is our understanding we are here on the issue of whether or not to reinstate his visitation at this point.
"THE COURT: Right.
"[THE FATHER’S COUNSEL]: And that is what we are here to respond to.
"[THE MOTHER’S COUNSEL]: And, Your Honor, I apologize I do see that in the order now. Because we did have -- so we initially had a hearing in October -- on October the 6th. [The mother] and I came for that hearing on October 6th. [The father] failed to appear, although he had been served. It got reset for December 7th. And then the Court continued it based on having being in the middle of a jury trial. Then it got -- and then you did enter an order that day resetting it. And then it was continued a couple of times after that, and finally set for today. So I apologize I thought it was a final hearing. But we are prepared to go forward with the final hearing.
"THE COURT: Okay. I think for the Court’s purposes, and I think as [the father’s attorney] pointed out, I think my -- expectation today was to hear arguments about the visitation and the current status of visitation. So I guess what we would do, then, is just reset a final hearing on the modification that was filed in your case, at a later date, which -- it sounds like most of the issues will cross into the arguments for today anyway, so. But that was my expectation and the Court’s intention. So we will proceed today on the hearing regarding [the father’s] visitation.1128 "[NOOJIN’S COUNSEL]: Yes, sir. Because we are due a final hearing, as well. Before I filed this motion, the last order that preceded the one -- the emergency order stopping visits, granted some visitation, ordered the child resume counseling, and then set it for a final hearing. We just did not have that, and so
"THE COURT: So they both need to be set for final hearing. Okay.
"[NOOJIN’S COUNSEL]: Oh, I’m sorry. My client reminded me. We are set August the 4th for a final hearing.
"THE COURT: Okay. Well, maybe we can set yours for August 4th.
"[THE MOTHER’S COUNSEL]: Judge, do you mind if I look at my calendar real quick?
"THE COURT: That is good.
"[THE MOTHER’S COUNSEL]: August 4 looks good with me, Judge.
"THE COURT: So we will set it for that same day at 9:00. So we will proceed then with the hearing on [the father’s] current visitation."
Thereafter, the trial court received testimony and admitted certain exhibits. The hearing was not concluded on May 25, 2022, and was continued to August 4, 2022, which, as noted in the colloquy above, was the date originally set for the trial in the Noojin action and the tentative setting for the mother’s modification action.
On August 4, 2022, the second day of the two-day hearing convened. Based on the colloquy that took place at the beginning of the August 4, 2022, hearing, it was the understanding of the trial court, the mother, and the father that the August 4, 2022, hearing was a "continuation" of the May 25, 2022, hearing on the continuation of the suspension of the father’s visitation under the ex parte order and would be the "final hearing on the [e]x [p]arte [m]otion that was filed some time ago."
"THE COURT: We are here this morning in the matter of Christian Tyler Robinson versus Jennifer Lauren Robinson. That is DR-16-900342.03.
"That case has been consolidated with [the Noojin action].
"The parties are present in the courtroom with their respective counsel.
"And we have Mr. David King our Guardian ad Litem joining us, via, Zoom video conference this morning.
"And just so the Court is clear, I know we have had several hearings in this matter, but this is the final hearing on the ex parte motion that was filed some time ago. And in response to that motion, the Court, I guess, made [the father’s] visitation supervised every Saturday, correct, from like 1:00 to 5:00 or
"[NOOJIN’S COUNSEL]: 10:00 to 4:00.
"[THE MOTHER’S COUNSEL]: 10:00 to 4:00, I think, Your Honor.
"THE COURT: All right. And so that is the purpose of today’s hearing, is the final hearing on that Ex Parte Motion.
"[NOOJIN’S COUNSEL]: Okay, Judge, and just for procedural sake, Jennifer’s action is a new action. And it was consolidated for hearing purposes. Ms. Noojin’s action has never actually been brought to finality. I think the Order that preceded the Ex Parte Order suspending visits was an Order that was still under review. And we were still to come back and complete some action, which is why we’re still at a .00. It is not a .01. And so we still never had an evidentiary hearing to hear the totality of the evidence.
"But we certainly -- you know, we want to present whatever we can and we need to. But if Court wants to limit us to
"THE COURT: Well, the only limit that the Court will put on you is you have got until 12:00 o’clock because I have afternoon hearings.
"[NOOJIN’S COUNSEL]: I got you. Yes, sir.
"THE COURT: So we can’t - we won’t be able to go past 12:00.
"[NOOJIN’S COUNSEL]: Yes, sir. Well, we will try to cover, obviously, as much as we can so that we don’t have to keep coming back and starting over and that type of thing, but
"THE COURT: Yeah. I mean, I know the issues sort of are intertwined. And there is a lot of testimony that applies to both cases. I guess that is the reason for the consolidation. But I think for purposes of visitation issues, we do need to come to some finality, I think
"[NOOJIN’S COUNSEL]: Yes, sir.
"THE COURT: - with regards to that emergency petition and his supervision. His visitation being supervised and
"[NOOJIN’S COUNSEL]: Yes, sir.
"THE COURT: All right. Go ahead [Noojin’s counsel].
"[NOOJIN’S COUNSEL]: The testimony from the last hearing is still part of today, right?
"THE COURT: Yeah. This is a continuation of that hearing. Because I think we ran out of time at the last hearing.
"[NOOJIN’S COUNSEL]: Yes, sir.
"….
"THE COURT: Okay, [father’s counsel], are you in agreement with that?
"[THE FATHER’S COUNSEL]: Judge, it is. I mean, we’re the Respondent on both petitions.
"THE COURT: I understand.
"[THE FATHER’S COUNSEL]: So, I mean, that is where we are. Dr. Fain has testified, I think, in three different hearings, so.
"THE COURT: Okay, Well, then we will proceed along those lines."
Thereafter, the trial court received testimony. On October 18, 2022, the trial court entered a final judgment purportedly disposing of the merits of the modification action.
[3] We agree with the mother that the trial court erred to reversal in entering a "Final Order," purportedly on the merits, after conducting only a hearing on whether to continue the suspension of the father’s visitation with the child as provided in the ex parte order. We, however, disagree with the mother that this case involves a lack of due process so as to render the trial court’s October 18, 2022, judgment, as finally amended, void.
In Gilmore, this court dealt with a similar issue wherein the trial court in that case entered a final judgment on the merits of the entirety of the action after conducting only a hearing on the former wife’s motion for pendente lite custody. The former husband contended that his due-process rights had been violated by the trial court’s entering a final judgment on the merits of the action and, in support of his argument, he cited M.G. v. J.T., 90 So. 3d 762 (Ala. Civ. App. 2012), in which this court held that the judgment entered in that case was void because it was entered in a manner inconsistent with due process because M.G. had not been served with process and a copy of the petition and had not been afforded an opportunity to be heard on the petition. Although this court determined in Gilmore "that the trial court erred to reversal in entering a judgment on the merits without affording the parties an opportunity to fully litigate the action on the merits," we held that, because the parties had received notice of the claims involved, the case did not involve the want of due process such that the trial court’s judgment was rendered void. Id. at 835-36. Instead, we concluded in Gilmore that the judgment entered by the trial court should be reversed because the parties had not been afforded the opportunity to fully litigate the merits of the action. Id.
In this matter, as in Gilmore, the parties were served with notice of the claims involved, and there is no indication in the record that the trial court intended to consider a final determination on the merits at the May 25, 2022, and August 4, 2022, hearing. The record is clear that the trial court intended the May 25, 2022, hearing to be on the issue of the suspension of the father’s visitation in response to the mother’s ex parte motion requesting that relief and the August 4, 2022, hearing to be a continuation of the May 25, 2022, hearing on that same issue. We conclude, as we did in Gilmore, that this case does not involve the lack of due process at issue in M.G., supra, so as to render the October 18, 2022, judgment, as finally amended, void.
We therefore reverse the trial court’s judgment insofar as it purports to adjudicate the entirety of the modification action, and we remand the cause for the trial court to conduct a trial on the merits of the mother’s petition to modify custody and the father’s visitation rights with the child.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.