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C.C.N. v. R.E.S.

Alabama Court of Civil Appeals

April 7, 2017

C.C.N.
v.
R.E.S.

         Appeal from Mobile Juvenile Court (CS-09-5695.02)

          ON APPLICATION FOR REHEARING

          DONALDSON, Judge.

         This court's no-opinion order of affirmance issued on February 10, 2017, is withdrawn, and the following is substituted therefor.

          C.C.N. ("the father") appeals from the judgment of the Mobile Juvenile Court ("the juvenile court") denying his petition to modify a custody order pertaining to A.B.S. ("the child"). We affirm the judgment.

         Facts and Procedural History

         The father and R.E.S. ("the mother") were in a dating relationship for approximately six months. After they ended the relationship, the mother discovered that she was pregnant. The father was initially permitted to attend prenatal appointments with the mother, but, because the parties consistently argued, the mother refused to allow the father to continue to attend. The child was born on April 24, 2009. Shortly after the child's birth, the father initiated an action in the juvenile court seeking a judgment declaring his paternity of the child and an award of custody of the child, which action was docketed as case number CS-09-5695 ("the CS case"). In February 2012, in addition to establishing the father's paternity of the child, the juvenile court awarded the parents joint legal custody and the mother sole physical custody, with the father having visitation. It is not entirely clear from the record, but it appears that the order containing that custody award was appealed to the Mobile Circuit Court ("the trial court") for a de novo review because the record was not certified as adequate, pursuant to Rule 28(B), Ala. R. Juv. P. The appeal was assigned case number DR-12-58 ("the DR case"). In March 2013, the parties entered into an agreement in the DR case pursuant to which they would have joint legal custody, the mother would have sole physical custody, and the father would have "standard visitation." The agreement was adopted as an order of the trial court in the DR case.

         On December 10, 2013, the father filed in the trial court a pleading that he described as an "Instanter Motion for Modification of Custody." The trial-court clerk docketed the pleading as case number DR-12-58.01 ("the DR .01 case"). On February 7, 2014, the mother filed a motion in the DR .01 case to suspend visitation, in which she asserted that the child had disclosed that the father had sexually abused the child. The parties filed numerous additional pleadings, including motions for immediate change of custody, motions to suspend visitation, and motions for contempt. Each party made various allegations of parental alienation against the other. The mother made numerous allegations that the father had sexually abused the child and attempted to terminate the father's parental rights on three different occasions.

         On June 6, 2014, after a hearing, the trial court entered an order in the DR .01 case granting pendente lite sole physical custody to the father and granting visitation to the mother. At a hearing in the DR .01 case on September 19, 2014, the assigned trial-court judge, Judge Edmond G. Naman, disclosed that he had been contacted ex parte on behalf of the mother, that he had received what he considered to be political threats related to the case, and that he believed that he needed to recuse himself.

         On September 23, 2014, Judge Naman entered the following order in the DR .01 case:

"The Court having reviewed the above numbered petition, it has been ascertained that said petition should have been filed under Case Number CS 2009 5695 as the next point designator (the court notes that the above numbered case was a De Novo Appeal from the said CS 2009 5695 case when an adequate record could not be produced. The order from said case should have been entered into the Juvenile court file as the final order therein, thereby terminating the Circuit Court jurisdiction over these parties and the child who is the subject matter of the case.)
"It is therefore ORDERED, that the above numbered petition is hereby transferred to the Juvenile Court and the Clerk shall cause the same to be properly docketed. It is further ORDERED that the undersigned recuses himself in said case and the case shall be assigned to the Honorable George Brown, District Judge."

         The case was then docketed in the juvenile court as case number CS-09-5695.02. It is unclear from the record whether there was a case number CS-09-5695.01. On January 15, 2015, after a hearing, the juvenile court entered an order prohibiting contact between the child and the child's maternal grandmother. The juvenile court also adopted and confirmed the previous pendente lite custody order entered by the trial court in the DR .01 case. The juvenile court opined that the December 2013 petition filed by the father had been improperly filed in the trial court and should have been filed in the juvenile court.

         On September 23, 2015, the juvenile court entered another pendente lite order that, among other things, dissolved the previous order of temporary custody to the father and granted the parties joint legal and physical custody pending the final hearing. The juvenile court also ordered that the child could have no contact with certain family members of the parents.

         On March 22, 2016, after multiple days of testimony, the juvenile court entered an order denying the father's petition to ...


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