Ex parte Pankey

• Decision Date: 18 October 2002
• Citation: 848 So.2d 963
• Parties: Ex parte Brian Kevin PANKEY. (In re Brian Kevin Pankey v. Mary Sue Pankey.)
• Court: Alabama Supreme Court

848 So.2d 963

Ex parte Brian Kevin PANKEY.
(In re Brian Kevin Pankey v. Mary Sue Pankey.)

1011274.

Supreme Court of Alabama.

October 18, 2002.

Christopher A. Pankey, Albertville, for petitioner.

Submitted on petitioner's brief only.

WOODALL, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

HOUSTON, JOHNSTONE, and STUART, JJ., concur.

LYONS and HARWOOD, JJ., concur specially.

MOORE, C.J., and BROWN, J., dissent.

LYONS, Justice (concurring specially).

My vote to deny the petition for the writ of certiorari should not be construed as supportive of a casually dismissive attitude concerning the potentially harmful effects of the adulterous activity of a parent upon a child. However, under the circumstances of this case, I defer to the trial court's judgment in which it awarded primary custody of the six-year-old boy to his mother.

The trial court had the opportunity to observe the demeanor of the witnesses as they testified at trial; to assess the credibility both of the mother in her plea for continued custody and of the father, who acknowledged that the mother is a good mother; to weigh the effect upon the youngster of being placed in day care—as he would if the father had been awarded custody—for an average of more than 10 hours per day, 5 days per week, and on 3 of those days early enough to allow the father to be on duty at 5:30 a.m.; to weigh the effect of relocating the boy so he could be with the father's family during the father's training activities, which are as long as four weeks; and to consider all other factors in the record.

The trial court obviously concluded that the child's best interests at this stage in his life were best served by allowing the mother to retain custody. I cannot second-guess this judgment based upon the materials before us. We should not make the mother pay a very dear price for her misconduct at the expense of this six-year-old boy.

HARWOOD, Justice (concurring specially).

I write specially in light of the lengthy dissent by the Chief Justice. He raises many valid and challenging legal, social, and moral points, but I respectfully disagree that we properly can address those points in response to the petition for the writ of certiorari filed by Brian Pankey ("the father"). In that regard, this Court must remain mindful of the limited scope of the initial review that attends the filing with this Court of a petition for a writ of certiorari directed to one of the courts of

848 So.2d 964

appeal. Rule 39, Ala. R.App. P., prescribes the limitations in clear, mandatory terms. Rule 39(a)(1) dictates that "[i]n all civil cases ... petitions for writs of certiorari will be considered only" in five categories precisely delineated in Rule 39(a)(1) as being eligible for consideration for the issuance of the writ. Any contention sought to be presented that does not fit within one of those categories cannot be considered. In this case, the father has chosen to proceed solely pursuant to Rule 39(a)(1)(D). The language of that Rule is as follows

"(a) Considerations Governing Certiorari Review; Grounds. Certiorari review is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only when there are special and important reasons for the issuance of the writ.

"(1) Civil Cases .... In all civil cases... petitions for writs of certiorari will be considered only:

". . . .

"(D) From decisions in conflict with prior decisions of the Supreme Court of the United States, the Supreme Court of Alabama, the Alabama Court of Criminal Appeals, or the Alabama Court of Civil Appeals; provided that:

"1. When (a)(1)(D) is the basis of the petition, the petition must quote that part of the opinion of the court of appeals and that part of the prior decision the petitioner alleges are in conflict; or

"2. Where it is not feasible to quote that part of the opinion either because no wording in the opinion clearly shows the conflict or because no opinion was issued, the petition shall state specifically and with particularity how the decision conflicts with a prior decision."

The father's statement of his Rule 39(a)(1)(D) ground in his petition reads, in its entirety, as follows:

"The Father is seeking review of the decision of the Court of Civil Appeals based on Rule 39(a)(1)(D)2. of the Alabama Rules of Appellate Procedure in that the Court of Civil Appeals failed to review the trial court's decision in light of the factors set out by this Honorable Court in Ex parte Devine, 398 So.2d 686 (Ala.1981). Although the Father addressed each of these factors in the brief on appeal and the Court of Civil Appeals appeared to consider them in the August 24, 2001, opinion ..., it does not appear they were given any consideration in the March 15, 2002, opinion.... By failing to consider the trial court's decision in light of all of these factors, the March 15, 2002, decision of the Court of Civil Appeals is in conflict with the law as set out by this Honorable Court in Ex Parte Devine."

The father later reaffirmed in his petition the focus of his conflict ground by providing this condensed restatement of it as one of his "Issues Presented for Review":

"Did the Court of Civil Appeals err so as to create a conflict between its decision of March 15, 2002, and the law as set out by this Honorable Court in Ex parte Devine by affirming the trial court's custody decision while failing to consider that decision in light of all of the factors set out in Ex parte Devine rather than only the factor of adultery?"

Accordingly, and assuming without determining that this statement of "conflict" satisfies Rule 39(a)(1)(D)2., as specified by the father, our threshold function is to review the March 15, 2002, decision of the Court of Civil Appeals in conjunction with a careful reading of Ex parte Devine, to determine if a true conflict has been identified.

848 So.2d 965

In that regard, we will consider all of the facts stated in the March 15, 2002, opinion of the Court of Civil Appeals. Further, the father having advised us that he "did not file an application for rehearing," we will consider any additional facts he provides in his petition in conformity with the requirements of Rule 39(d)(5)(C)

"[I]f the petition for writ of certiorari seeks review of a decision of the Court of Civil Appeals and the petitioner has not filed an application for rehearing with the Court of Civil Appeals, and ...

[i]f the Court of Civil Appeals issues an opinion containing a statement of facts and the party petitioning for the writ of certiorari is not satisfied with that statement of facts, the petitioner may, in the petition for the writ of certiorari, present to the Supreme Court a proposed additional or corrected statement of facts or the applicant's own statement of facts, with references to the pertinent portions of the clerk's record and the reporter's transcript."

The father has provided in his petition a three-page "Statement of Facts," which fully complies with that procedure and, thus, those facts (but only those facts) can be considered along with the facts contained in the March 15, 2002, opinion of the Court of Civil Appeals.

In note 6 in his dissent, the Chief Justice first states: "The sole issue before this Court in Ex parte Devine was the constitutionality of the `tender-years' presumption. That presumption required courts to award custody of young children, i.e., children of `tender years,' to the mother." 848 So.2d at 972. Then noting that the Devine court determined that presumption to be unconstitutional, the Chief Justice states, "Thus, the factors discussed in Ex parte Devine were not necessary for the decision and therefore are dicta." 848 So.2d at 972 n. 6. If that is an accurate assessment of the legal status of the factors noted in Ex parte Devine, then it is doubtful whether a failure by the Court of Civil Appeals to consider all of them would constitute a true conflict. As stated in Ivey v. Wiggins, 276 Ala. 106, 109, 159 So.2d 618, 620 (1964):

"`"It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision."'"

(Quoting State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 341, 186 So. 487, 496 (1939), quoting in turn Osaka Shosen Kaisha Line v. United States, 300 U.S. 98, 103, 57 S.Ct. 356, 81 L.Ed. 532 (1937).)

Applying that principle, this Court concluded that certain statements made in one of its prior decisions, but that were not necessary to the disposition of that case, "are dicta and are not controlling here." 276 Ala. at 109, 159 So.2d at 620. See also State ex rel. Robertson v. Robertson, 675 So.2d 422, 425 (Ala.Civ.App.1995).

However, assuming, for the sake of further analysis, that the Devine factors have sufficient legal status that a decision of the Court of Civil Appeals "failing to consider [a] trial court's decision in light of all of these factors" could present a true conflict, the Devine factors warrant our attention in the analysis we must undertake in determining whether the writ of certiorari is due to issue. (That the Chief Justice considers those factors to have such status is evident by his statement that the "Court of Civil Appeals' misconstruction of the law it relies upon in affirming the trial court's custody award in this case conflicts directly with Ex parte Devine, which sets out this Court's current test for determining

848 So.2d 966

initial custody." 848 So.2d at 979.) Although the Chief Justice's...