Morgan v. Morgan

• Decision Date: 05 June 2020
• Docket Number: 2180486
• Citation: 322 So.3d 531
• Parties: Jennifer Kelley MORGAN v. John Jason MORGAN
• Court: Alabama Court of Civil Appeals

322 So.3d 531

Jennifer Kelley MORGAN

v.John Jason MORGAN

2180486

Court of Civil Appeals of Alabama.

June 5, 2020

Certiorari Denied September 11, 2020

Alabama Supreme Court 1190750

Lindsey Mussleman Davis of Holt, Mussleman, Morgan & Alvis, Florence, for appellant.

Terry L. Mock and Andrew L. McGee, Tuscumbia, for appellee.

EDWARDS, Judge.

Jennifer Kelley Morgan ("the wife") and John Jason Morgan ("the husband") were married in May 2008. They have two children, who were born in 2010 and 2014. In October 2016, the husband filed a complaint in the Colbert Circuit Court ("the trial court") seeking a divorce from the wife. The wife later filed a motion seeking the recusal of the trial-court judge based solely on the trial judge's "long-standing relationship" with the husband's grandfather.

The trial in this action spanned five separate days between September 2017 and September 2019. The trial court appointed Bethany Malone as the guardian ad litem for the children.¹ However, because the husband's relatives had approached Malone's law partner on two occasions in apparent attempts to influence Malone's report, the trial court, in March 2018, appointed Jenna Smith as the replacement guardian ad litem. After the conclusion of the trial, the trial court asked Smith if she desired to submit a guardian ad litem's report and recommendation ("the guardian ad litem's report"), to which she replied that she would do so. Although Smith apparently submitted the guardian ad litem's report to the trial court, the record does not contain the guardian ad litem's report, and the State Judicial Information System case-action-summary sheet does not reflect that Smith filed a report.

On December 4, 2018, the trial court entered a judgment divorcing the parties, the details of which will be discussed below. In that judgment, the trial court invited Smith to file a motion seeking an award of a fee "and demonstrat[e] to the court ... the reasonable fees necessarily incurred for her services to the minor children"; Smith filed a motion on December 14, 2018, in which she requested a fee of $10,035. The wife filed a postjudgment motion directed to the divorce judgment, in which she requested a hearing. The trial court denied the wife's motion by an order entered on March 1, 2019, after which the wife filed a timely notice of appeal.

On appeal, the wife raises several issues. She complains that the trial judge erred by failing to recuse herself from the divorce action upon the wife's motion. She also argues that the trial court erred by considering the guardian ad litem's report regarding custody of the children despite the fact that the guardian ad litem's report was not provided to the parties and the parties had been given no opportunity to contest Smith's findings or recommendations or to cross-examine Smith; the wife further contends that the trial court should not have required her to pay certain amounts of the fees awarded to both Malone and Smith. In addition, the wife challenges the trial court's division of the parties’ property, including its decision not to include in the marital estate certain property gifted to the husband by members of his family. She further contends that the trial court erred by awarding the husband sole physical custody of the children. Finally, the wife contends that the trial court erred by failing to hold a hearing on her postjudgment motion, in which she raised all these issues.

Before discussing the facts revealed in the record, we will first consider the argument that the trial-court judge should have recused herself from the divorce action based on the wife's allegation that the judge had a "long–standing relationship" with the husband's grandfather. In her postjudgment motion, the wife again raised the issue of recusal. The trial judge responded to the wife's recusal request in the postjudgment order by stating that, although she knew the husband's grandfather, her relationship with the husband's grandfather was not significant enough to cause a conflict requiring her recusal and by noting that the husband's grandfather had neither testified nor been involved in the divorce action.

First, we note that, in contrast to the assertion by the husband in his brief on appeal that the issue of recusal must be appropriately considered by a petition for the writ of mandamus, a party may seek review of the disposition of a motion to recuse on appeal from a final judgment. Ex parte Crawford, 686 So. 2d 196, 198 (Ala. 1996).²

" ‘The burden is on the party seeking recusal to present evidence establishing the existence of bias or prejudice.’ Ex parte Melof, 553 So. 2d 554, 557 (Ala. 1989), abrogated on other grounds, Ex parte Crawford, 686 So. 2d 196, 198 (Ala. 1996), citing Otwell v. Bryant, 497 So. 2d 111, 119 (Ala. 1986). ‘[A] mere accusation of bias that is unsupported by substantial fact does not require the disqualification of a judge.’ Ex parte Melof, 553 So. 2d at 557 (emphasis omitted). Prejudice on the part of a judge is not presumed. Hartman v. Board of Trs. of the Univ. of Alabama, 436 So. 2d 837, 841 (Ala. 1983) ; Duncan v. Sherrill, 341 So. 2d 946, 947 (Ala. 1977) ; and Ex parte Rives, 511 So. 2d 514, 517 (Ala. Civ. App. 1986). ‘ "[T]he law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea." ’ Ex parte Balogun, 516 So. 2d 606, 609 (Ala. 1987) (quoting Fulton v. Longshore, 156 Ala. 611, 613, 46 So. 989, 990 (1908) )."

Baldwin v. Baldwin, 160 So. 3d 34, 37 (Ala. Civ. App. 2014). We have also explained that "[a]dverse rulings by themselves are not sufficient to establish bias or prejudice."

Tackett v. Jones, 575 So. 2d 1123, 1124 (Ala. Civ. App. 1990). Furthermore, a legal error by a judge is not sufficient to demonstrate a need for recusal. See Jadick v. Nationwide Prop. & Cas. Ins. Co., 98 So. 3d 5, 10 (Ala. Civ. App. 2011) (indicating that allegations that a trial court committed errors in ruling is not a proper basis for recusal).

The wife's initial motion for recusal asserted that the basis for recusal was solely the trial-court judge's supposed "long-standing relationship" with the husband's grandfather. The wife has presented no evidence of the type of relationship the trial-court judge had with the husband's grandfather, and the trial-court judge's knowledge of him through casual contact or his standing in the community is simply not sufficient to demonstrate that the trial-court judge was biased. Insofar as the wife also complains that the inappropriate conduct of the husband's family members in contacting the law partner of the initial guardian ad litem is a basis for recusal, we note that the trial-court judge immediately replaced the initial guardian ad litem upon her disclosure of the conduct of the husband's relatives. We fail to see a demonstration of bias against the wife in the actions of the trial-court judge in that regard. Thus, we affirm the trial-court judge's denial of the wife's motion to recuse.

We next turn to the wife's argument that her due-process rights were infringed when Smith submitted the guardian ad litem's report solely to the trial court and not to the parties. The husband has candidly conceded that, pursuant to our supreme court's holding in Ex parte R.D.N., 918 So. 2d 100 (Ala. 2005), it appears that the trial court should have held a hearing on the wife's postjudgment motion insofar as she challenged Smith's failure to provide the parties a copy of the guardian ad litem's report. See Wicks v. Wicks, 49 So. 3d 700, 701 (Ala. Civ. App. 2010) (explaining that the failure to hold a hearing on a postjudgment motion is not harmless error when there is probable merit in the motion). In Ex parte R.D.N., our supreme court explained that a guardian ad litem is not permitted to have ex parte communication with the trial court and that a guardian ad litem's recommendation should be provided to the parties so that they have the opportunity to challenge that recommendation. Ex parte R.D.N., 918 So. 2d at 104. The court explained:

"The guardian ad litem's recommendation ... was not presented as evidence produced in open court and was based on information that may or may not have been properly presented to the court. As a result, the father was denied the opportunity to respond with rebuttal evidence and to present reasons why the recommendation of the guardian ad litem should not be followed. The mother was also denied the opportunity to respond and present reasons why the guardian ad litem's recommendation should be followed."

Id. (footnote omitted).³

The husband also admits that the wife's complaint that she was not permitted to challenge the reasonableness of Smith's fee also entitled her to a hearing on her postjudgment motion insofar as it raised that issue. As our supreme court explained in Ex parte R.D.N., a parent who might be assessed a guardian ad litem fee is "entitled to an evidentiary hearing for the purpose of determining a reasonable fee for the guardian ad litem and an order setting forth ‘with some particularity the findings from the evidence adduced.’ " Id. at 105 (quoting Lolley v. Citizens Bank, 494 So. 2d 19, 21 (Ala. 1986) ). Like in Ex parte R.D.N., Smith submitted her fee request after the conclusion of the trial, and neither the wife nor the husband was permitted to challenge the reasonableness of the fee requested by Smith.

We appreciate the candor of the husband in admitting that the irregularities in the submission of the guardian ad litem's report and Smith's fee request appear to be error requiring further action by the trial court. We agree that the trial court should have held a hearing on the wife's postjudgment motion insofar as it raised those issues so as to address the potential error and the impact on the parties’ rights to due process. Accordingly, we will not consider the propriety of the trial court's custody award...