If parties to a case are left for months without a ruling on their requests, they may have relief through the appellate courts.
It is not unusual for court cases to last months and even years in contentious situations. What is unusual is for cases to be in limbo for over a year on a single question because the judge refuses to issue an order. In Ex parte Taylor, No. 2200379, however, that is just what happened. In a decision on April 2, 2021, the Alabama Court of Civil Appeals issued an opinion reprimanding a Montgomery Circuit Judge for waiting over 16 months to issue a ruling on a father’s request for custody. The father had asked for a ruling on his initial request over five times without receiving any response from the judge. This, the Court of Civil Appeals said, was contrary to the children’s best interests and a dereliction of duty.
The father’s original petition to Montgomery Circuit Judge Anita l. Kelly was filed on October 8, 2019. In it, the father asked to modify a divorce judgment between himself and the mother. The father said that the original divorce judgment gave the him and the mother joint legal and physical custody of their two children. However, the mother told the father that she intended to move to California to join a religious cult and take the children with her. The father petitioned Judge Kelly for sole physical custody of the children. In a separate motion, he also asked for immediate, or pendente lite, relief granting him immediate temporary custody of the children. Judge Kelly set the father’s pendente lite motion for hearing on October 17, 2019. The hearing was conducted on the scheduled date, but no order was entered. Over three months later, on February 3, 2020, the father filed a motion asking for an order on the motion. He again asked for a ruling on August 5, 2020, and once more on October 16, 2020. On November 17, 2020, the father filed another motion, this time asking for the case to be set for a final hearing, and noting that his request for pendente lite custody had not yet been entered. The father asked for an order on his motion for pendente lite custody for the fifth and final time on January 26, 2021, but as with each of his previous requests, received no ruling from Judge Kelly.
Instead of fruitlessly filing a sixth motion for an order, the father, on February 22, 2021, requested that the Court of Civil Appeals issue a writ of mandamus directing Judge Kelly to rule. The next day, the Court issued an order requiring Judge Kelly to file “an answer to the father’s petition” and directing her to “explain why she has failed to rule on the pendente lite matters pending before her and the request foe a final hearing filed by [the father]” by or before noon on February 26, 2021. On February 26, 2021, Judge Kelly entered the two orders requested: a pendente lite order that granted the father temporary physical custody, and a scheduling order for the father’s original modification petition that set a date for the final hearing. The Court noted, however, that neither order complied with the Court’s directive for an explanation for Judge Kelly’s delay.
The Court found that Judge Kelly’s 2021 orders had made the father’s mandamus petition moot. And it found Judge Kelly immune from the father’s request for attorneys fees resulting from her delay. Nonetheless, the Court saw fit to engage in a lengthy discussion of Judge Kelly’s “consistent dereliction of duty in promptly disposing of the cases before her” and the adverse effect her actions had on the father’s children. Because the father had presented evidence in 2019 that the mother was not able to financially support the children, the Court explained that her lengthy delay had put the children at risk.
The Court explained: “A judge is expected to ‘dispose promptly of the business of the court, being ever mindful of matters taken under submission,’ Canon 3.A.(5), Ala. Canons of Jud. Ethics, and to ‘diligently discharge his [or her] administrative responsibilities,’ Canon 3.B.(1), Ala. Canons of Jud. Ethics.” The Court then admonished Judge Kelly for neglecting her duty to quickly handle cases before her, and also cited the discipline she received in 2018 for similar inaction. Finally, the Court stated that “any delay in disposing of such cases is contrary to the children’s best interest … and should be steadfastly avoided in future cases,” citing Durham v. Sisk, 628 So. 2d 873, 875 (Ala. Civ. App. 1993); and Ex parte Hall, [No. 1180976, Nov. 6, 2020] ___ So. 3d ___ (Ala. 2020) (Canons have effect and force of law).
Generally, judges at all levels are very aware that cases involving children need quick decisions. From this case, we learn that parties to court proceedings— especially juvenile proceedings— have an avenue for relief in the courts if their judge simply refuses to set a hearing or rule on their requests. It might be expensive and time-consuming to go to the appellate courts, but when lower court judges do delay for months, there is a means of review.
John Forrest was born and raised in Montgomery, AL and is a graduate of Auburn University at Montgomery. John is a recent convert to Christianity and is excited to grow more in godliness and holiness. He hopes to attend law school so that he may become an attorney and become an ambassador for Christ in the courtroom.