Appeal from Monroe Circuit Court (DR-10-12)
When her term of office expired, former Monroe Circuit Judge Dawn Hare had not ruled on a motion to alter, amend, or vacate a final judgment that had been filed on January 15, 2013, by Carol Baldwin ("the wife") in a divorce action, i.e., case no. DR-10-12. Because the successor judge, Jack B. Weaver, had acted as the wife's attorney in case no. DR-10-12, he recused himself from the case, and Chief Justice Roy Moore specially assigned Judge John H. Morgan, Jr., a district-court judge from Clarke County, to preside over the case. On April 12, 2013, Judge Morgan, solely in an effort to avoid the wife's postjudgment motion being denied by operation of law, see Rule 59.1, Ala. R. Civ. P., vacated the final judgment and ordered a new trial. Rickey Allen Baldwin ("the husband") eventually appealed from that order to this court.
On appeal, this court concluded that the wife had raised two main claims in her postjudgment motion: (1) that the final judgment resulted from extrajudicial bias of Judge Hare and (2) that Judge Hare had erred in awarding the husband custody of the parties' minor child and in dividing the marital estate. This court held that the wife had failed to present any evidence of extrajudicial bias to support her first ground. We further held that, in order to determine whether the judgment should be vacated based on the second ground, Judge Morgan first had to comply with Rule 63, Ala. R. Civ. P., by certifying his familiarity with all the evidence in the record directed toward the custody and property-division issues, which Judge Morgan had not yet done. This court reversed the trial court's order vacating the December 18, 2012, divorce judgment and ordering a new trial, and we remanded the cause with instructions for Judge Morgan to reconsider the wife's postjudgment motion, except for the unsupported bias argument, after reviewing the trial transcript in compliance with Rule 63. See Baldwin v. Baldwin, 160 So.3d 34 (Ala. Civ. App. 2014).
On remand, Judge Morgan reviewed the trial transcript and conducted a hearing on September 26, 2014, to receive arguments from the parties' counsel as to their interpretation of this court's opinion in Baldwin and to address the wife's postjudgment motion. Following that hearing, Judge Morgan entered an order stating, in pertinent part:
"There is no possible way for this Court to know what or why the previous Judge awarded certain things to the [wife] or [the husband] in this case by reading the transcript and reviewing this case file.
"There are too many uncertainties for this Court to agree or disagree to hold just or unjust to deem equitable or inequitable the previous Court's Order.
"Accordingly, the motion to Alter, Amend or Vacate is GRANTED and the final order dated 12/18/2012 is hereby VACATED and this case shall be re-tried."
(Capitalization in original.) The husband timely appealed to this court from the foregoing order.
We agree with the husband that our remand order did not require Judge Morgan to determine why Judge Hare had ruled as she did but, rather, that it required Judge Morgan to determine only whether the disposition of the custody of the child and the division of the marital property made by Judge Hare were equitable and supported by the evidence. Reading the foregoing order as a whole, as well as considering the colloquy between Judge Morgan and the parties during the September 26, 2014, hearing, we conclude that Judge Morgan did not misconstrue our remand order. Instead, the record fairly shows that Judge Morgan attempted to follow our remand instructions but, in doing so, determined that he could not ascertain from his review of the transcript and other evidence in the case file whether Judge Hare's judgment was equitable, particularly with regard to the property division.
Formerly, before it was amended effective October 1, 1995, Rule 63 provided:
"If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial."
In Birmingham Retail Center Associates, Ltd. v. EastwoodFestival Associates, 608 So.2d 340 (Ala. 1992), our supreme court, citing Trail Pontiac–GMC Truck, Inc. v. Evans, 540 So.2d 645 (Ala. 1988), and Hall v. Hall, 445 So.2d 304 (Ala. Civ. App. 1984), construed the former version of Rule 63 as investing a successor judge, who has reviewed a transcript, with the authority to order a new trial based on substantive grounds. 608 So.2d at 343. The supreme court did not limit its holding to that interpretation, however, further finding that Rule 63 authorizes a successor judge to ...