Alise N. Ellis v. Michael Wayne Duncan

Rel: February 3, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
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Alise N. Ellis

v.

Michael Wayne Duncan

Appeal from Montgomery Circuit Court
(DR-19-900733)

THOMPSON, Presiding Judge.

Alise N. Ellis ("the mother") appeals the judgment of the

Montgomery Circuit Court ("the trial court") adjudicating Michael Wayne

Duncan ("the father") as the legal father of E.D. ("the child"), born in May

2016, and awarding the parties joint legal custody of the child, the mother
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sole physical custody of the child, and the father visitation with the child.

We reverse the denial of the mother's postjudgment motion by operation

of law and remand the cause for the trial court to conduct a hearing on

that motion.

On November 25, 2019, the mother filed in the trial court a petition

for a determination of paternity and custody of the child. The mother

asked the trial court to adjudicate the father to be the legal father of the

child, to award her legal and physical custody of the child, and to order

the father to pay child support. On December 14, 2019, the father filed

an answer in which he acknowledged that he was the child's father and

a counterclaim asking the trial court to award him joint legal custody of

the child with reasonable visitation. After considering the evidence

presented at a trial conducted on July 26, 2021, the trial court, on October

18, 2021, entered a final judgment adjudicating the father to be the legal

father of the child and awarding the parties joint legal custody of the

child, the mother sole physical custody of the child, the father visitation,

and the mother $766 per month as child support and $10,000 as past-due

child support. Regarding the father's visitation, the judgment provides:

"a. The father shall have visitation with the minor child
on the 1st and 3rd weekends of each month beginning

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November 6, 2021, from 6:00 p.m. on Friday until 6:00 p.m.
on Sunday. Should Dr. Kale Kirkland decide that supervised
visitation is needed, Dr. Kirkland shall have the authority to
change the father's visitation to supervised visitation, and Dr.
Kirkland shall be designated as the coordinator. Likewise,
Dr. Kirkland also has the authority to change the visitation
schedule. Dr. Kirkland and/or the parties may mutually
agree upon the visitation supervisor should one be required.
The father is responsible for coordinating said visitation with
Dr. Kirkland. The mother shall contact Dr. Kirkland to
confirm the time of said visits. The parties shall be
responsible for payment of any supervised visitations on a
pro-rata basis in accordance with child support guidelines."

(Emphasis added.)

On November 16, 2021, the mother filed a postjudgment motion,

alleging, among other things, that the award of joint legal custody was

not in the child's best interest, that unsupervised visitation by the father

with the child was not in the child's best interest, that the trial court

exceeded its discretion by authorizing Dr. Kirkland to modify the father's

type of visitation and visitation schedule, and that the trial court erred

in determining the amount of past-due child support. The mother asked

the trial court to conduct a hearing to address the issues raised in her

postjudgment motion. While the postjudgment motion was pending, the

trial judge, after consideration of a motion to recuse filed by the father,

recused herself. No hearing was conducted on the mother's postjudgment

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motion, and the motion was denied by operation of law on February 14,

2022. See Rule 59.1, Ala. R. Civ. P. On March 24, 2022, the mother filed

her notice of appeal.

The mother contends on appeal that the trial court erred by

allowing her postjudgment motion to be denied by operation of law

without conducting a hearing.

In Isbell v. Rogers Auto Sales, 72 So. 3d 1258, 1260-61 (Ala. Civ.

App. 2011), this court stated:

"Rule 59(g), Ala. R. Civ. P., provides:

" 'Presentation of any post-trial motion to a judge
is not required in order to perfect its making, nor
is it required that an order continuing any such
motions to a date certain be entered. All such
motions remain pending until ruled upon by the
court (subject to the provisions of Rule 59.1), but
shall not be ruled upon until the parties have had
opportunity to be heard thereon.'

"(Emphasis added.) Describing the effect of the emphasized
part of that rule, our supreme court has held that when a party
requests a hearing on its postjudgment motion, 'the court must
grant the request.' Flagstar Enters., Inc. v. Foster, 779 So. 2d
1220, 1221 (Ala. 2000). However, although a trial court errs
when it fails to hold a requested hearing on a Rule 59
postjudgment motion, the supreme court has explained that
such error does not always require reversal:

" 'Harmless error occurs, within the context of a
Rule 59(g) motion, where there is either no

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probable merit in the grounds asserted in the
motion, or where the appellate court resolves the
issues presented therein, as a matter of law,
adversely to the movant, by application of the
same objective standard of review as that applied
in the trial court.'

"Greene v. Thompson, 554 So. 2d 376, 381 (Ala. 1989)."

See also Rogers v. Rogers, 260 So. 3d 840, 844-45 (Ala. Civ. App. 2018).

The mother in her postjudgment motion requested a hearing to

address the issues that she raised in her motion, and this court agrees

with the mother that the trial court erred in refusing to conduct such a

hearing. See Rule 59(g), Ala. R. Civ. P. Thus, the issue now becomes

whether the failure to conduct a hearing was harmless.

In her postjudgment motion and on appeal, the mother contends

that the trial court exceeded its discretion by authorizing Dr. Kirkland

"to change the father's visitation to supervised visitation … and to change

the visitation schedule." According to the mother, this delegation of

authority is erroneous and is not harmless error. The father in his

appellate brief agrees with the mother that the provision delegating the

trial court's authority to Dr. Kirkland to decide whether the father's

visitation should be supervised is improper.

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In Pratt v. Pratt, 56 So. 3d 638, 644 (Ala. Civ. App. 2010), this court

stated:

" ' "The trial court is entrusted to balance the rights of the
parents with the child's best interests to fashion a visitation
award that is tailored to the specific facts and circumstances
of the individual case." ' Ratliff [v. Ratliff], 5 So. 3d [570,] 586
[(Ala. Civ. App. 2008)] (quoting Nauditt v. Haddock, 882 So.
2d [364,] 367 [(Ala. Civ. App. 2003)(plurality opinion)])
(emphasis added). That judicial function may not be
delegated to a third party. See, e.g., M.R.J. v. D.R.B., 34 So.
3d 1287 (Ala. Civ. App. 2009)(reversing as an improper
delegation of judicial authority a trial court's visitation
judgment in which the mother's visitation was at the sole
discretion of the child's guardian ad litem). A trial court is not
empowered to delegate its judicial functions even to another
governmental agency. Hall v. Hall, 717 So. 2d 416 (Ala. Civ.
App. 1998)(a trial court cannot delegate the decision whether
to terminate father's supervised visitation to those who would
decide whether father would be prosecuted for sexual abuse).
See also Sloand v. Sloand, 30 A.D. 3d 784, 816 N.Y.S. 2d 603
(N.Y. App. Div. 2006)(affirming that portion of the trial court's
order awarding supervised visitation to mother, but reversing
as an improper delegation of judicial authority that portion of
the order delegating to the child's therapist the authority to
expand or reduce mother's access to child)."

Although the trial court's visitation award, as written, vests the

father with unsupervised visitation, it provides Dr. Kirkland, a third

party, with complete discretion to determine whether an award of

unsupervised visitation is appropriate and the authority to modify the

type of visitation awarded and the visitation schedule. Because those are

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nondelegable determinations for the trial court to make, the mother's

postjudgment motion contains merit, and the denial of the mother's

postjudgment motion without a hearing cannot be considered harmless.

For the foregoing reasons, we reverse the denial of the mother's

postjudgment motion by operation of law, and we remand the cause to

the trial court to conduct a hearing on the issues raised in her

postjudgment motion. Frazier v. Curry, 119 So. 3d 1195 (Ala. Civ. App.

2013); and Isbell, supra. Although the mother raised other arguments in

her postjudgment motion, the lack of a hearing on the propriety of the

visitation award is dispositive, and we express no opinion as to the

validity of the other arguments raised by the mother and pretermit

discussion of them. See Henderson v. Henderson, 123 So. 3d 974, 977-78

(Ala. Civ. App. 2013).

The mother's request for an attorney fee on appeal is denied.

REVERSED AND REMANDED.

Moore, Edwards, and Fridy, JJ., concur.

Hanson, J., recuses himself.

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