J.C. v. K.E.

REL: February 10, 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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CL-2022-0702
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J.C.

v.

K.E.

Appeal from Blount Juvenile Court
(CS-19-5)

MOORE, Judge.

J.C. ("the father") appeals from a judgment entered by the Blount

Juvenile Court ("the juvenile court") that, among other things, awarded

sole physical custody of K.C. ("the child") to K.E. ("the mother"). Because

the juvenile court erred in failing to hold a hearing on the father's
CL-2022-0702

postjudgment motion, we reverse the denial of the postjudgment motion

and remand the case to the juvenile court with instructions.

Pertinent Procedural History

The child was born on May 1, 2018. On June 5, 2019, the father

filed a complaint in the Jefferson Juvenile Court, requesting that he be

adjudicated the legal father of the child and awarded visitation with the

child. The Jefferson Juvenile Court transferred the case to the juvenile

court on June 28, 2019. On January 8, 2020, the father filed an amended

complaint to add a claim for custody of the child. On that same date, the

mother filed an answer to the amended complaint, along with a

counterclaim for custody of the child and child support. The case

proceeded to trial on April 27, 2022.

At the outset of the trial, the juvenile court directed the father to

call his first witness. The following colloquy then occurred:

"[Counsel for the father]: ... Before we start, we would
like to put on the record that we were told today that we were
limited to two [and] a half hours when I had previously told
the court that it will take two days to try [the case]. We have
a host of exhibits that it will be extremely prejudicial to our
case not to be allowed to get into those in detail. This is a
significant case. [The father] has filed a medical complaint
for custody he had filed for visitation.
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"[The juvenile court]: Sure.

"[Counsel for the father]: There's just no way for us to do
our whole case adequately in two and a half hours.

"[The juvenile court]: Well, it will be a total five, each
side has two and a half. The court only has just today,
tomorrow I have a whole other docket, so with that being said,
sir, if you'll raise your right hand for me."

During the direct testimony of the father, the juvenile court indicated

that the father had exhausted his allotted two and one-half hours and

instructed his counsel to ask one final question. Later, when the father's

counsel attempted to cross-examine the mother's first witness, the

juvenile court stated: "I realize that you used all of your time, I am going

to bend my rule and I'm going to give you 10 minutes if you need 10

minutes with this lady." The juvenile court then enforced a 10-minute

time limit for the father's cross-examination of the remaining witnesses

for the mother, including the mother herself.

On May 3, 2022, the juvenile court entered a final judgment that,

among other things, awarded the mother sole physical custody of the

child, subject to an award of "standard" biweekly, summertime, and

holiday visitation to the father. On May 17, 2022, the father timely filed
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a postjudgment motion, asserting, among other things, that he had been

denied due process of law under the 14th Amendment by being

constrained by the time limits established by the juvenile court, which,

according to the father, prevented him from completing his testimony,

from calling any other witnesses on his behalf, and from effectively cross-

examining the mother and her witnesses. The father included in his

postjudgment motion a recitation of the evidence that he would have

presented if he had been given more time, which recitation includes

several affidavits of witnesses whose testimony was not heard at trial

and consumes approximately 200 pages of the record. The father also

attached over 1,000 pages of exhibits to the postjudgment motion. The

father requested a hearing on the postjudgment motion in order to

present oral argument for why the motion should be granted, but the

juvenile court did not set the postjudgment motion for a hearing.

On May 28, 2022, while the postjudgment motion was still pending,

the father filed a notice of appeal. Pursuant to Rule 4(a)(5), Ala. R. App.

P., the father's notice of appeal was held in abeyance pending the juvenile

court's timely disposition of the postjudgment motion, or the denial by

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operation of law of said motion. See Rule 1(B), Ala. R. Juv. P. (providing

that, in juvenile courts, postjudgment motions must be ruled upon within

14 days or they are deemed denied by operation of law). The juvenile

court did not rule on the father's postjudgment motion within the 14-day

period set forth in Rule 1(B), so it was denied by operation of law on June

6, 2022, at which point, the notice of appeal became effective. See Rule

4(a)(5).

Issue

The father presents several arguments on appeal, but we find the

argument that the juvenile court erred in failing to conduct a hearing on

his postjudgment motion to be dispositive.

Analysis

In his postjudgment motion, the father argued that he had been

denied due process when the juvenile court imposed "surprise" time

limits on the parties during the trial, which, he argued, unreasonably

prejudiced his ability to adequately present his case and cross-examine

the mother and her witnesses. The father requested, among other things,

that the juvenile court conduct a new trial in order to cure the alleged

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lack of due process by allowing him to present all the evidence to support

his claims and to challenge the mother's claims, without a time limit. At

the conclusion of his postjudgment motion, the father requested that the

juvenile court hear oral argument on the motion. In Ex parte Evans, 875

So. 2d 297, 299-300 (Ala. 2003), our supreme court held that, "if a party

requests a hearing on its motions for a new trial, the court must grant

the request." The supreme court also stated, however, that, " '[a]lthough

it is error for the trial court not to grant such a hearing, th[at] error is

not necessarily reversible error,' " if, for example " 'an appellate court

determines that there was no probable merit to the motion.' " 875 So. 2d

at 300 (quoting Flagstar Enters., Inc. v. Foster, 779 So. 2d 1220, 1221

(Ala. 2000)). In that instance, the appellate court " 'may affirm [the trial

court's denial of the hearing] based on the harmless-error rule. See Rule

45, Ala. R. App. P.' " Id. (quoting Foster, 779 So. 2d at 1221).

In this case, we cannot say that the father's postjudgment motion

lacks probable merit. In R.C. v. L.C., 923 So. 2d 1109 (Ala. Civ. App.

2005), this court reversed a judgment determining the dependency and

custody of two children on the basis that the Houston Juvenile Court had

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denied the children's mother, R.C., due process by unduly limiting her

presentation of the evidence. The Houston Juvenile Court set a hearing

for August 17, 2004, to consider a dependency petition filed by L.C. and

K.C., the children's paternal grandparents. The paternal grandfather

testified that afternoon, and the hearing was recessed until August 30,

2004. On that date, the paternal grandfather completed his testimony

and the paternal grandparents called four other witnesses before resting

their case. R.C. then began presenting her case by calling the paternal

grandmother as her first witness. After an examination spanning only

20 pages of trial transcript, the trial judge informed the parties that it

was 2:40 p.m. and that he would be concluding the trial at "about 3:15."

923 So. 2d at 1110. Counsel for R.C. objected to the time limit, and, upon

completing the examination of the paternal grandmother, called R.C. as

a witness; R.C.'s testimony was completed within the allotted time.

Counsel for R.C. indicated that more witnesses would be called, but the

trial judge indicated that he was "out of time" and had "heard enough

testimony to make a decision." Id. at 1111.

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This court first determined that R.C. had preserved her argument

that the trial judge had violated her due-process rights by enforcing the

time limit. Ordinarily, when a trial court excludes evidence, the

proponent of that evidence must make an offer of proof to preserve the

objection for appellate review, but no offer of proof is necessary when it

would be a useless gesture based on the attitude of the trial court.

Harbert v. Harbert, 721 So. 2d 224, 225 (Ala. Civ. App. 1998). This court

determined in R.C. that, because the Houston Juvenile Court had

insisted that no more time would be allowed for the trial of the case, any

attempt by R.C. to make an offer of proof would have been futile. R.C.

did, however, attach to her postjudgment motion affidavits from the

witnesses that she had intended to call, which affidavits contradicted the

testimony of the paternal grandparents on key issues in the case. We

determined that those affidavits were sufficient for this court to

determine whether R.C. had been denied due process by the decision of

the trial judge to limit her presentation of her case.

This court next determined that R.C. was entitled to due process in

the dependency and custody proceeding, which, we stated, included a fair

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opportunity to present evidence and argument, as well as a reasonable

opportunity to controvert the paternal grandparents' claims. 923 So. 2d

at 1111-12 (citing Crews v. Houston Cnty. Dep't of Pensions & Sec., 358

So. 2d 451, 455 (Ala. Civ. App. 1978)). This court noted that Rule 403,

Ala. R. Evid., gives a trial court some discretion in excluding cumulative

evidence, but we held that a " 'trial court is not empowered to exclude

evidence simply because of impatience with the length of the trial.' " 923

So. 2d at 1112 (quoting Charles W. Gamble, McElroy's Alabama

Evidence § 21.01(10) (5th ed. 1996)). This court also concluded that a

" ' "trial court may not simply disallow testimony due to time constraints

and the desire to clear its docket." ' " 923 So. 2d at 1114 (quoting Harbert,

721 So. 2d at 225, quoting in turn Morrison v. Morrison, 628 So. 2d 839,

841 (Ala. Civ. App. 1993)).

The paternal grandparents in R.C., citing Case v. Case, 627 So. 2d

980 (Ala. Civ. App. 1983), and Morrison, argued that the decision of the

Houston Juvenile Court to limit the presentation of R.C.'s evidence

should be upheld because the court had heard the evidence and had

denied R.C.'s motion for a new trial. In response to that argument, this

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court rejected the principle that the decision of a trial court to limit the

presentation of the evidence is automatically harmless error when the

trial court later denies a motion for a new trial. This court explained

that, in Case, this court had affirmed a judgment entered by the Houston

Circuit Court because the record in that case had disclosed that the

evidence was becoming cumulative and repetitive and was related to

facts already established or uncontroverted and, thus, it had been within

the discretion of the Houston Circuit Court to preclude further evidence

on the same point. This court in R.C. then overruled Morrison to the

extent that it had determined that the decision to arbitrarily end a trial

after receiving only the testimony of the parties is harmless error if the

trial court has reviewed the substance of the testimony of the excluded

witnesses and has determined that the outcome of the trial would not

have changed. This court held that the right to due process requires a

trial court to receive non-cumulative evidence on material points. 923

So. 2d at 1113.

In the end, this court in R.C. concluded that the Houston Juvenile

Court had unfairly limited R.C. from presenting her case. This court

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noted that R.C. had been informed of the time limit only 35 minutes

before it was to expire and only after the paternal grandparents had been

allowed to present their case in full. This court determined that the

Houston Juvenile Court had acted in a wholly arbitrary fashion in

imposing the deadline, in violation of R.C.'s due-process rights to notice

and an opportunity to be heard in a meaningful manner. 923 So. 2d at

1114.

The father argues that he was similarly denied due process in this

case based on the unexpected and arbitrary decision of the juvenile court

to unduly limit the presentation of his evidence and to stifle his

opportunity to controvert the claims of the mother through a thorough

and sifting cross-examination. The father analogizes his case to R.C.

because, he says, he was not adequately warned of the time limit, the

time limits unfairly prevented him from completing his testimony and

from calling other favorable witnesses who would have offered non-

cumulative evidence, the time limits were arbitrary and imposed

improperly by the juvenile court to clear its docket, and it would have

been futile for the father to make an offer of proof because of the juvenile

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court's insistence on enforcing the time limits. The circumstances of this

case are not exactly on all fours with those in R.C., but the minor

differences emphasized by the mother in her brief to this court do not

persuade us that the father's postjudgment motion should have been

denied by operation of law. We do not express any opinion on whether

the postjudgment motion is due to be granted; we hold only that it was

not harmless error for the juvenile court to deny the postjudgment motion

without first conducting a hearing on its merits.

We therefore reverse the denial of the postjudgment motion by

operation of law and remand the case with instructions that the juvenile

court forthwith hold a hearing on the father's postjudgment motion and

take such other actions as are consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.

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