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A.J. v. E.W.

Alabama Court of Civil Appeals

November 14, 2014

A.J.
v.
E.W

Released for Publication July 22, 2015.

As Corrected July 9, 2015.

Page 363

Appeal from Clarke Juvenile Court. (JU-13-23.01). James Harding Morgan, Jr., Trial Judge.

For Appellant: Lisa M. Ivey, Jasper.

For Appellee: C. Daryl Drinkard, Grove Hill.

DONALDSON, Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

OPINION

Page 364

DONALDSON, Judge.

If a movant requests a hearing on a postjudgment motion filed pursuant to Rule 59, Ala. R. Civ. P., a denial of the motion without an opportunity for the movant to be heard will be reversed if there is probable merit to a ground contained in the motion. See, e.g., Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala. 2000). In this case, A.J. (" the father" ) appeals from a judgment entered by the Clarke Juvenile Court (" the juvenile court" ) finding A.J., Jr. (" the child" ), dependent, placing temporary custody of the child with E.W. (" the grandmother" ), and providing that the father's visitation with the child would be entirely subject to the grandmother's discretion. The father filed a Rule 59 postjudgment motion to alter, amend, or vacate the judgment, which included, among other requests for relief, a request for the visitation portion of the judgment to be altered, amended, or vacated. The father asked for a hearing on the motion; however, the motion was denied by operation of law before a hearing was held. Because we hold that at least a portion of the postjudgment motion had probable merit, we reverse the denial of the motion and remand the cause for a hearing to be held on the father's motion.

Facts and Procedural History

The father and the child's mother never married. In 2012, the father and the mother discontinued their relationship. On April 8, 2013, the mother died in an automobile accident. The child was three years old at that time. The mother and the child had been living with the grandmother before the mother's death. On April 15, 2013, the grandmother initiated the underlying dependency action and petitioned the juvenile court for custody of the child. On April 15, 2013, the juvenile court granted the grandmother pendente lite custody of the child and set a hearing on the issue of dependency.

On February 10, 2014, the juvenile court conducted a hearing and received ore tenus testimony. Evidence was presented regarding the issue of dependency, as well as the issue of custody if the child was found to be dependent. The father testified that he had had an informal arrangement with the mother for visitation with the child before the mother's death. During the weekend before the mother's death, the child had been staying at the father's residence. ...


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