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Robinson v. Arnold

Alabama Court of Civil Appeals

June 23, 2017

Matthew Robinson
v.
Akeisha Danielle Arnold

         Appeal from Macon Circuit Court (DR-16-900024)

          MOORE, Judge.

         Matthew Robinson appeals from a judgment entered by the Macon Circuit Court ("the trial court") in a protection-from-abuse action filed by Akeisha Danielle Arnold. We affirm the trial court's judgment.

         Procedural History

         On October 11, 2016, Arnold filed a petition seeking an order protecting her from abuse by Robinson. On October 14, 2016, the trial court entered an ex parte protection-from-abuse order and set the case for a final hearing. That same day, Robinson answered the petition. Following the final hearing, the trial court entered a final protection-from-abuse judgment against Robinson on November 21, 2016. On December 2, 2016, Robinson filed a postjudgment motion. Without conducting a hearing, the trial court entered an order on December 5, 2016, denying the postjudgment motion and stating, in pertinent part:

"Both [Robinson] and [Arnold] were present at the final hearing, with their respective counsel. Both parties were given full opportunity to present to the Court any evidence he or she desired the Court to consider. During this hearing, both parties, after conferring with their respective counsel, agreed to the relief requested by [Arnold]. This Court, however, independently found that there was sufficient evidence to support the issuance of a Final Order Of Protection From Abuse, in this cause, to protect [Arnold]."

         On January 10, 2017, Robinson filed his notice of appeal.

         On February 6, 2017, Robinson filed a "Motion for Statement of Evidence" with this court, noting that no transcript had been made of the final hearing and attaching his own affidavit setting forth his statement of what he asserted had transpired at the proceedings. On February 14, 2017, this court denied Robinson's motion on the basis that he had not complied with the procedure set forth in Rules 10(d) and 10(f), Ala. R. App. P. (establishing procedure for providing a statement of the evidence when no transcript is available).

         Discussion

         On appeal, Robinson first argues that the trial court erred in declining to hold a hearing on his postjudgment motion.

"'This court has held that
"'"[g]enerally, a movant who requests a hearing on his or her postjudgment motion is entitled to such a hearing. Rule 59(g), Ala. R. Civ. P.; Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala. 2000). A trial court's failure to conduct a hearing is error. Flagstar Enters., 779 So.2d at 1221."
"'Dubose v. Dubose, 964 So.2d 42, 46 (Ala. Civ. App. 2007); see also Staarup v. Staarup, 537 So.2d 56, 57 (Ala. Civ. App. 1988) ("[Rule 59(g)] mandates that, when a hearing is requested on a motion for new trial, the hearing must be granted.").
"'[However], this court has recognized an exception to the general rule that the denial of a postjudgment motion without conducting a requested hearing is reversible error. See Gibert v. Gibert, 709 So.2d 1257, 1258 (Ala. Civ. App. 1998) ("A trial court errs by not granting a hearing when one has been requested pursuant to Rule 59(g); however, that error is not necessarily reversible error."). "On appeal, ... if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule." Palmer v. Hall, 680 So.2d 307, 307-08 (Ala. Civ. App. 1996); see also Lowe v. Lowe, 631 So.2d 1040, 1041 (Ala. Civ. App. 1993) ("Denial of a Rule 59 motion ...

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