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Rogers v. Rogers

Alabama Court of Civil Appeals

March 30, 2018

Trista Lynn Rogers
v.
Robert Rogers III

          Appeal from Franklin Circuit Court (DR-14-900007.01)

          DONALDSON, JUDGE.

         Trista Lynn Rogers ("the mother") appeals from judgments of the Franklin Circuit Court ("the trial court") granting Robert Rogers III ("the father") sole physical custody of G.L.R. and L.A.R. ("the children") and child support from the mother. The mother filed a motion to alter, amend, or vacate the judgments pursuant to Rule 59, Ala. R. Civ. P., and requested a hearing. The trial court denied the motion without conducting the requested hearing. Because we determine that at least a portion of the postjudgment motion had probable merit, we reverse the order denying the motion and remand the cause for a hearing to be held on the mother's motion.

         Facts and Procedural History

         On June 17, 2015, the trial court entered a judgment divorcing the parties. The divorce judgment, which incorporated an agreement reached by the parties, granted the parties joint legal and physical custody of the children. On June 14, 2016, the father filed a complaint seeking modification of the divorce judgment to obtain sole legal and physical custody of the children, child support from the mother, and a finding of contempt against the mother for noncompliance with the divorce judgment. The mother filed an answer and a counterclaim seeking sole legal and physical custody of the children, child support from the father, and a finding of contempt against the father. A guardian ad litem was appointed to represent the children's interests.

         On July 1, 2016, the mother filed a motion requesting that Judge Terry Dempsey, who had been presiding over the case, recuse himself. On July 5, 2016, the trial court entered an order denying the motion to recuse. On July 11, 2016, the mother filed a petition for a writ of mandamus to this court seeking an order directing Judge Dempsey to recuse himself. This court denied the mother's petition, holding that, even though Judge Dempsey had previously recused himself in the parties' divorce action, the present action was a separate case and the mother had not demonstrated a clear legal right to the recusal of Judge Dempsey in this action. Ex parte Rogers, 218 So.3d 859, 867 (Ala. Civ. App. 2016).

         On August 2, 2016, the parties reached a mediated agreement regarding the father's visitation pending the outcome of the case. The parties did not reach an agreement as to the other issues in the case.

         On March 23, 24, and 27, 2017, the trial court conducted a hearing in which it received ore tenus testimony. At the time of the hearing, G.L.R. was seven years old and L.A.R. was five years old. During the hearing, the parties presented testimony regarding the issue of the custody of the children. Although the mother submitted a "Child-Support-Obligation Income Statement/Affidavit" ("CS-41 form"), the father did not submit a CS-41 form or present testimony as to his income.

         On April 17, 2017, the guardian ad litem filed a report of her findings in the case. In the report, the guardian ad litem recommended modifying the divorce judgment to grant the father sole physical custody of the children with visitation to the mother and to order the mother to pay the father child support. On April 21, 2017, the mother filed a motion to strike the guardian ad litem's report. On April 23, 2017, the trial court entered an order denying the mother's motion to strike.

         On May 3, 2017, the trial court entered a judgment that granted the father sole physical custody of the children with visitation to the mother. In the judgment, the trial court stated: "The Court reserves jurisdiction to set child support. The father did not submit an income affidavit and the Court does not feel comfortable computing child support without the affidavit. The mother has already submitted an affidavit." The trial court denied all other relief not addressed in the judgment.

         On May 31, 2017, the mother filed a motion to alter, amend, or vacate the May 3, 2017, judgment. On June 23, 2017, the father filed a motion seeking a judgment regarding child support. The father attached to his motion a CS-41 form and a copy of a paycheck stub.

         On August 7, 2017, the trial court entered a judgment ordering the mother to pay $699 a month to the father as child support. Later on the same day, the trial court entered an order denying the mother's May 31, 2017, motion.

         On September 5, 2017, the mother filed a motion to alter, amend, or vacate the May 3, 2017, judgment and the August 7, 2017, judgment, requesting a hearing on the motion. In her motion, the mother argued that the trial court had lacked subject-matter jurisdiction to enter the August 7, 2017, judgment and that, if the trial court did have jurisdiction, the entry of the judgment without the opportunity to rebut the information in the father's CS-41 form denied the mother due process. Among other arguments, the mother also argued that insufficient evidence supported the grant of child support to the father and the change in custody. The mother further argued that the lack of opportunity to cross-examine the guardian ad litem about the findings contained in the guardian ad litem's report infringed on the mother's due-process rights.

         On September 8, 2017, the trial court entered an order denying the mother's September 5, 2017, motion. On September 14, 2017, the mother filed a notice of appeal to this court. We ...


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