Greene v. Greene
| Citation | 335 So.3d 666 |
| Decision Date | 26 March 2021 |
| Docket Number | 2190816 |
| Parties | Meagan GREENE v. Sethe GREENE |
| Court | Alabama Court of Civil Appeals |
*Note from the reporter of decisions: Judge John Graham, circuit judge, 38th Judicial Circuit, was appointed to preside over this case upon the recusal of all the circuit judges in the 9th Judicial Circuit.
Tamara W. Neeley of Watson & Neeley, LLC, Fort Payne, for appellant.
Clark Hall, Gadsden, for appellee.
The DeKalb Circuit Court ("the trial court") entered an October 1, 2016, judgment divorcing Meagan Greene ("the mother") and Sethe Greene ("the father"). In that divorce judgment, which incorporated an agreement of the parties, the trial court, among other things, awarded the parties joint legal and physical custody of their two minor children.
On July 29, 2019, the mother filed in the trial court a petition seeking a modification of the divorce judgment. That action was designated as case number DR-16-9000257.01 ("the modification action") by the trial-court clerk. In her modification petition, the mother sought an award of sole custody of the parties' children, an award of child support, the enforcement of certain financial obligations imposed on the father by the divorce judgment, and an award of an attorney fee. The father answered and filed a counterclaim in which he sought to continue the award of joint legal and physical custody of the children but requested that the divorce judgment be modified to specify that the parties exchange custody of the children on a weekly basis rather than every three or four days.
The trial court conducted an ore tenus hearing on October 22, 2019. On October 24, 2019, the trial court entered a temporary order leaving the custodial arrangement under the divorce judgment in place, instructing the parties not to consume alcohol in the presence of the children, enjoining the father from consuming alcohol within 12 hours of his custodial periods, and requiring the parties to prepare and submit the child-support forms required by Rule 32, Ala. R. Jud. Admin.
On January 2, 2020, the mother filed a motion for an additional evidentiary hearing; as the basis for that motion, the mother alleged that the father's off-duty drinking might have endangered or resulted in the termination of his employment as a county deputy sheriff. On that same date, the trial court granted the mother's motion and scheduled an emergency hearing for January 10, 2020. However, on January 10, 2020, after a meeting between the parties, the mother withdrew her motion, and the emergency hearing did not take place.
On January 17, 2020, the trial court entered an order containing detailed findings of fact and conclusions of law regarding the parties' claims in the modification action. In that order, the trial court, among other things, awarded the mother "primary physical" custody of the children,1 awarded the father scheduled visitation, and ordered the mother to submit a proposed child-support order to the trial court. On February 5, 2020, the trial court entered an order establishing the father's child-support obligation to be $1,007.10 per month. That February 5, 2020, order, together with the January 17, 2020, order, constituted a final judgment in the modification action. See Heaston v. Nabors, 889 So. 2d 588, 590 (Ala. Civ. App. 2004) (). We hereinafter refer to the January 17, 2020, order and the February 5, 2020, order as "the 2020 modification judgment."
On February 27, 2020, the father, proceeding pro se, filed in the trial court a letter directed "to whom it may concern" and a separate request, for, among other things, a modification of his child-support obligation. In those February 27, 2020, filings, the father alleged that he had recently lost his employment as a county deputy sheriff. The trial-court clerk designated the father's February 27, 2020, filings as initiating a new action, and it assigned that action case number DR-9000257.02 ("the .02 action").
However, on March 11, 2020, the trial court entered an order stating that it would consider the father's February 27, 2020, filings as constituting a postjudgment motion filed pursuant to Rule 59(e), Ala. R. Civ. P., and it scheduled a hearing on that postjudgment motion. Also on March 11, 2020, the trial court ordered the dismissal of the .02 action.
On April 8, 2020, the parties filed a joint motion to extend the time for considering the father's February 27, 2020, postjudgment motion, and the trial court entered an order granting that joint motion.
On May 11, 2020, the trial court held a postjudgment hearing, discussed in more detail below. On June 9, 2020, the trial court entered an order granting that part of the father's postjudgment motion insofar as it requested a modification of his child-support obligation. In doing so, the trial court cited "a substantial change" in the father's income, and it reduced the father's child-support obligation to $397 per month.
The mother filed a postjudgment motion on June 16, 2020, arguing that the trial court had erred in granting in part the father's postjudgment motion and reducing his child-support obligation.2 The trial court denied the mother's postjudgment motion, and the mother timely appealed. The mother's arguments on appeal pertain solely to procedural issues concerning the postjudgment proceedings. For that reason, no recitation of the facts underlying the bases for the 2020 modification judgment are set forth in this opinion.
At the May 11, 2020, postjudgment hearing, the trial court heard only the arguments of counsel. At that postjudgment hearing, the father's attorney represented to the trial court that the father had lost his job as a county deputy sheriff on approximately January 24, 2020, and the parties' attorneys asserted competing arguments regarding whether the father had lost his job as a result of his alcohol consumption. We note, however, that unsworn factual representations or statements made by a party's attorney do not constitute evidence. Tucker v. Nixon, 215 So. 3d 1102, 1105 (Ala. Civ. App. 2016) ; B.E.H., Jr. v. State ex rel. M.E.C., 71 So. 3d 689, 693 n.2 (Ala. Civ. App. 2011) ; Y.N. v. Jefferson Cnty. Dep't of Human Res., 37 So. 3d 836, 838 (Ala. Civ. App. 2009). Therefore, no evidence was presented to the trial court during the postjudgment hearing. See Tucker v. Nixon, supra ; B.E.H., Jr. v. State ex rel. M.E.C., supra ; and Y.N. v. Jefferson Cnty. Dep't of Human Res., supra. Regardless, the parties agree that the father lost his employment as a county deputy sheriff and that job loss occurred after the October 22, 2019, hearing in the modification action.
The mother argues on appeal that the trial court erred in modifying the child-support provisions of the 2020 modification judgment through the entry of its June 9, 2020, postjudgment order because, she argues, the fact underlying the father's request for relief, i.e., his post-hearing job loss, does not warrant relief pursuant to a postjudgment motion. The mother contends that the father's job loss constitutes "new evidence" rather than "newly discovered evidence." As the mother contends, "newly discovered evidence" is evidence that was in existence at the time of a hearing on the merits but " ‘could not have been discovered with the exercise of due diligence’ " at the time of the hearing on the merits. Startley Gen. Contractors, Inc. v. Water Works Bd. of Birmingham, 294 So. 3d 742, 752 (Ala. 2019) (quoting Welch v. Jones, 470 So. 2d 1103, 1112 (Ala. 1985) ); Pacifico v. Jackson, 562 So. 2d 174, 177 (Ala. 1990) ; Davis v. City of Tuscaloosa, 496 So. 2d 82, 83 (Ala. Civ. App. 1986). "New evidence" is evidence that did not exist at the time of the trial or the hearing on the merits. Adkins v. Gold Kist, Inc., 531 So. 2d 890, 891 (Ala. Civ. App. 1987) ; see also Tice v. Tice, 100 So. 3d 1071, 1072 n.1 (Ala. Civ. App. 2012) ().
This court has held that a trial court may not consider a postjudgment motion that relies on new evidence and that a postjudgment motion that relies on newly discovered evidence is not favored. Bates v. State, 503 So. 2d 856, 858 (Ala. Civ. App. 1987) ; see also Tice v. Tice, 100 So. 3d at 1072 n.1 (citing Marsh v. Smith, 67 So. 3d 100, 107-08 (Ala. Civ. App. 2011) ). See also Goodyear Tire & Rubber Co. v. Haygood, 93 So. 3d 132, 141 (Ala. Civ. App. 2012) ().
Our analysis is somewhat complicated by the fact that the father sought relief pursuant to a postjudgment motion based on allegations that he had evidence to support his motion; however, the father did not actually attempt to present evidence, whether new or newly discovered, to the trial court during the postjudgment hearing. Regardless, the father alleges that he lost his employment as a county deputy sheriff after the...
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N.T.C. v. M.S.C.
...immediate custody and his postjudgment motion amounted to new evidence rather than newly discovered evidence. See Greene v. Greene, 335 So. 3d 666, 668-69 (Ala. Civ. App. 2021) (stating that evidence is "new evidence," rather than "newly discovered evidence," if the events the evidence conc......