Keel v. Keel

• Decision Date: 13 August 2021
• Docket Number: 2190857
• Citation: 347 So.3d 1247
• Parties: David Michael KEEL v. Terri Tucker KEEL (Jones)
• Court: Alabama Court of Civil Appeals

347 So.3d 1247

David Michael KEEL

v.Terri Tucker KEEL (Jones)

2190857

Court of Civil Appeals of Alabama.

August 13, 2021

Rachel Cohen Blume of Blume & Blume Attorneys at Law, P.C., Northport, for appellant.

Kayla W. Griffin of Turner Law Group, Tuscaloosa, for appellee.

HANSON, Judge.

This appeal arises from a civil action initiated in April 2019 by David Michael Keel ("the father") seeking to modify the child-custody provisions of a judgment entered on July 19, 2011, by the Chilton Circuit Court that divorced the father and Terri Tucker Keel, now known as Terri Jones ("the mother"), and, in pertinent part, awarded the mother physical custody of the parties' two minor children. Although the father filed his complaint in the court that had rendered the 2011 judgment, the mother filed a motion seeking to transfer the case to Tuscaloosa County on the authority of Ala. Code 1975, § 30-3-5, because, she said, she and the children had resided in Tuscaloosa County for more than three years preceding the commencement of the father's modification action. Although the Chilton Circuit Court entered an order denying the motion to transfer, this court, on mandamus review of the venue issue, issued a writ compelling that court to vacate that order, see Ex parte Keel (No. 2180991), 312 So. 3d 810 (Ala. Civ. App. 2019) (table), and the modification action was then transferred to the Tuscaloosa Circuit Court ("the trial court"), in which court the mother filed an answer to the father's complaint denying the father's entitlement to relief and a counterclaim seeking an upward modification of the father's child-support obligation. The trial court, on the motion of the father, appointed a guardian ad litem to represent the interests of the children.

The trial court conducted an ore tenus proceeding on July 15, 2020, during which the parties testified in open court and the trial court conducted an in camera interview with the older of the two children that was held outside the presence of counsel for the parties and, pursuant to the direction of the trial court, was conducted off the record notwithstanding the presence of a court reporter at the interview. At the close of the ore tenus proceeding, the trial court solicited submissions from counsel for the parties and from the guardian ad litem, stating:

"THE COURT: All right. Let me just say this, I will issue an order, what I need for you all to do, the attorneys, if you all will give me, [counsel for the father], if you will give me a proposed order of what you would like.

"[Counsel for the father]: Yes, sir.

"THE COURT: [Counsel for the mother], if you will do that as well and, [guardian ad litem], if you would just send me your response. Don't efile it. Email them, to me in [Microsoft] Word form. I want you all to send them to me at the same time."

(Emphasis added.) After the trial court had ended its concluding remarks about its impending consideration of the parties' positions, the guardian ad litem asked for clarification of what the trial court was seeking:

"[Guardian ad litem]: Your Honor, may I approach? Your Honor, may I approach and ask [a] question?

"THE COURT: Yes, you can.

"[Guardian ad litem]: Do you want me to send you a Word format or email my position?

"THE COURT: You can just email me. That will be fine.

"[Guardian ad litem]: Do you want me to do that prior or does it matter?

"THE COURT: As soon as possible. Once I get them all in, then I'll consider them and, hopefully, I can get an order entered.

"(END OF PROCEEDINGS)"

The trial court entered a judgment two days later that provided, in pertinent part:

"... In order to modify the preexisting custody judgment entered on July 19, 2011, the [father] must demonstrate that there has been a material change in circumstances, that the proposed change in custody will materially promote the children's best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the children. The Court notes that this standard, as set forth in [ Ex parte McLendon ], 455 So. 2d 863 (Ala. 1984), requires that a heavy burden be met. Based upon the matters presented, the Court does not find that the burden of proof as required by [ Ex parte McLendon ] has been met; therefore, the [father]'s Petition to Modify Custody is hereby denied.

"... The Court finds that there has been a material change in circumstances and that child support is due to be modified. The [father] shall pay to the [mother] the sum of [$]1,212.76 per month as child support for the care and maintenance of the ... children beginning August 1, 2020, and continuing on the first day of each month thereafter until the ... children are emancipated or until further order of this Court. Said amount is in compliance with Rule 32 of the Alabama Rules of Judicial Administration. ..."

The father, following the denial of his motion filed pursuant to Rule 59, Ala. R. Civ. P., seeking a new trial or to alter, amend, or vacate the judgment, appealed from the trial court's judgment.

The father's first argument on appeal concerns the conduct of the guardian ad litem. He initially asserts that, per the father's own testimony, the older of the two children had expressed a desire to live with him, and he infers that the guardian ad litem necessarily breached a duty owed to the child in formulating a recommendation regarding custody. The father further intimates, citing the contentions of his own postjudgment motion in support, that the older child had "heavily relied" on alleged remarks by the guardian ad litem that she would urge the trial court to make a custody change and that she would question the older child during his in camera interview.

However, after making those points, the father simultaneously acknowledges in his brief the principle that a judicially appointed guardian ad litem "is an officer of the court appointed to protect the child's interests and is not bound by the child's expressed preferences." 1 Judith S. Crittenden & Charles P. Kindregan, Jr., Alabama Family Law § 14:4 (2d. ed. 2015); accord Jones v. McCoy, 150 So. 3d 1074, 1080 (Ala. Civ. App. 2013) (noting that "the role of the guardian ad litem is to zealously advocate for the best interests of the child and not necessarily to represent the position of the child in relation to the litigation"). In the absence of any evidentiary indication¹ tending to show that the guardian ad litem acted in a manner that was not in the best interests of the child, we are in no position to reverse the judgment reached by the trial court as to the proper custodial disposition of the older child.²

The father next contends that the guardian ad litem was impermissibly allowed to make a recommendation regarding custody on an ex parte basis, citing Ex parte R.D.N., 918 So. 2d 100 (Ala. 2005), for the proposition that accepting a guardian ad litem's custody recommendation in an ex parte manner amounts to a due-process violation. As the portion of the trial transcript we have quoted above indicates, however, the trial court expressly notified counsel for both parties on...