Family Court often has a reputation of being heavy on the facts and light on the law. For attorneys who often practice in this field, we can get … well … a bit lazy on the law and come into court, willy-nilly with the facts. That can have detrimental consequences for our clients.
The great Roman Emperor, Justinian, wrote that “Justice is the steadfast resolve to give every person their due.” As medical doctors are in the business of healing, attorneys are in the business of doing justice. We must treat our profession like heart surgery. People’s lives hang in the balance. Our steadfast resolve must be salted with serious preparation.
The case of Gordon v. Gordon, 2180430 (Ala. Civ. App. May 22, 2020) illustrates this principle.
On February 14, 2017, Justin D. Gordon (the husband) filed for divorce from his wife Desirae R. Gordon (the wife). The action was assigned to Judge Anita Kelly. In August, 2017, Judge Kelly was disqualified from acting as a Judge under § 159 of the Alabama Constitution of 1901 as the Alabama Judicial Inquiry Commission filed Court of the Judiciary Case Number 50 in which Judge Kelly was named as defendant. The divorce was re-assigned to Judge Jonny Hardwick. Judge Hardwick entered a judgment in favor of the wife, awarding her sole physical custody of the child, dividing the marital debts and property, and finding the husband to be in contempt for failing to comply with a previous pendente lite order.
In October of 2018, the husband filed a post-judgment motion challenging the sufficiency of the evidence presented during the divorce hearing with a request for a hearing on the motion, and an accompanying motion to stay the judgment. In January 2019, Judge Kelly, who was reinstated as a judge in 2018, was reassigned to the divorce action. Without having a hearing required by Rule 59(g), Ala. R. Civ. P., Judge Kelly entered an order denying the husband’s motions. The Judge’s order does not mention that any review of evidence from the trial took place or a review of the transcript from the trial. The record shows that the judge did not obtain a copy of the transcript until May 29, 2019. The husband made an appeal on the order to the Alabama Court of Civil Appeals.
Rule 63, Ala. R. Civ. P. requires that if a Judge succeeds another Judge who is unable to proceed with a trail or hearing, the successor Judge may proceed provided they certify their familiarity with the record. If there is no jury in the hearing or trial, then the Judge must recall any witness whose testimony is disputed at the request of any party, and the Judge may recall any other witness.
In Baldwin v. Baldwin, 160 So. 3d 34, 39 (Ala. Civ. App. 2014), the court stated “Rule 63 requires that a successor judge who is hearing a post-judgment motion review that part of the record pertaining to the issues raised in the post-judgment motion.” In Baldwin v. Baldwin the Judge’s term of service ended after entering a final judgment. The successor Judge granted a post-judgment motion from one party seeking a new trial. The Judge did not, however, read the trial transcript which contained pertinent testimony to the motion. The Alabama Court of Civil Appeals reversed the Judge’s order on the post-judgment motion and remanded the case for the Judge to reconsider the motion after reviewing the trial transcript.
In light of the Alabama Court of Civil Appeals’s decision in Baldwin v. Baldwin, Judge Kelly was not in compliance with Rule 63 in Gordon v. Gordon. The Court of Civil Appeals of Alabama found that given the issues raised in the husband’s post-judgment motion, Judge Kelly could not have been sufficiently prepared to give an order on the motion. The court vacated the Judge’s order on the motion. It is important to note that this does not mean that the husbands motion is denied, but the Judge was ordered that if she were to reconsider the husband’s post-judgement motion it must be in strict compliance with rule 63.
In the washroom of a small Dallas County law room I saw a memorable plaque: “A good attorney never looses his trial appeal.” Getting a just outcome requires a partnership between the judge and the attorneys. As attorneys, we cannot rely solely on the legal acumen of the judge before whom we stand. They are not all knowing or omniscient. Even if we like the outcome of a trial court decision, we have to make sure the court is following the letter of the law – lest we loose our appeal.
Brennan DePace was born and raised as a pastor’s child and has carried with him the strong Biblical values passed on from his father. DePace is the youngest of five children who received a rigorous and thorough home-schooled education. He is now a Freshman at Auburn University at Montgomery studying History, with the hopes of attending law school and becoming an attorney. DePace serves as Legal Assistant to the Hon. Samuel J. McLure of The Adoption Law Firm.
