Rel: March 7, 2025
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2024-2025 _________________________
CL-2024-0220 _________________________
Jeffrey A. Fraiser
v.
Taylor K. Nahrstedt
Appeal from Elmore Circuit Court (DR-22-900073)
EDWARDS, Judge.
Jeffrey A. Fraiser ("the father") appeals from an amended judgment
entered by the Elmore Circuit Court ("the trial court") that, among other
things, adjudicates him to be the biological father of A.K. ("the child"),
awards Taylor K. Nahrstedt ("the mother") and the father joint legal CL-2024-0220
custody of the child, awards the mother sole physical custody of the child,
establishes a parenting plan, and awards the mother monthly child
support and retroactive child support. We affirm the trial court's
judgment in part, reverse the judgment in part, and remand the case to
the trial court.
Procedural Background
On April 13, 2022, the mother filed in the trial court a petition
seeking custody of the child. The mother alleged, among other things,
that the child, whose date of birth is January 17, 2020, had been born out
of wedlock to the mother and the father. On May 12, 2022, the father
filed an answer to the mother's petition.
On May 25, 2022, the father filed, in the trial court, a motion
seeking the recusal of Judge Sibley Reynolds, who had been assigned the
case. As the basis for his request, the father asserted that, in a previous
case, it had been alleged that he had threatened Judge Reynolds. The
father also asserted that the alleged threat had been presented to an
Elmore County grand jury, which, he said, had "no billed" the case. Also,
on May 25, 2022, the father filed in the trial court a motion seeking the
2 CL-2024-0220
disqualification 1 of the mother's attorney because, he said, the mother's
attorney had, in 2021, gained "intimate details" of the father's business
relationships and income when he had represented the father in an
unrelated civil matter. On May 25, 2022, Judge Reynolds entered an
order recusing himself from the parties' custody action.
On July 1, 2022, the mother filed a response to the father's motion
seeking the disqualification of her counsel. In her response, the mother
objected to the disqualification of her counsel and disputed the father's
assertion that her counsel had previously represented the father. She
did, however, concede that her counsel had written a letter on the father's
behalf to the father's brother regarding a "totally unrelated civil matter"
but that, thereafter, the father had not retained the attorney to represent
him.
On July 19, 2022, the father filed a motion seeking the appointment
of a substitute trial judge and a hearing on his motion to have the
1Although the father's motion requested the "recusal" of the mother's attorney, that request was, in effect, a motion seeking the disqualification of the attorney. See Ex parte Thacker, 159 So. 3d 77, 79 (Ala. Civ. App. 2014) (generally explaining that attorneys may be disqualified from representation and that a trial judge may be required to recuse from an action). 3 CL-2024-0220
mother's counsel disqualified. In his motion, the father asserted that in
the two months since Judge Reynolds's recusal, no judge had been
assigned to the pending custody case. The following day, July 20, 2022,
an order was entered reassigning the case to circuit-court judge Ben
Fuller.2
On October 4, 2022, Judge Fuller entered an order scheduling all
pending motions for a hearing to occur on November 4, 2022. Further,
Judge Fuller's order provided that "Joy P. Booth, Special Circuit Judge,"
would preside over the November 4, 2022, motion hearing. Thereafter,
on October 11, 2022, Judge Fuller, in his capacity as the presiding judge
of the Nineteenth Judicial Circuit, entered an order transferring the case
to Judge Booth.
On October 20, 2022, Judge Booth entered an order, ex mero motu,
rescheduling the motion hearing for November 1, 2022. On October 30,
2022, the Judge Booth entered an order that, among other things,
ordered the mother's counsel to seek a written opinion from the Alabama
State Bar regarding his potential conflict in representing the mother and
2Judge Ben Fuller retired effective January 16, 2023.
4 CL-2024-0220
to submit that opinion to the trial court; she also canceled the November
1, 2022, motion hearing.
On May 16, 2023, the mother filed in the trial court a motion
seeking the immediate return of the child. In her motion, the mother
alleged, among other things, that the parties had informally agreed to a
pendente lite visitation schedule and that the father had failed to return
the child at the end of his agreed-upon visitation period. That same day,
Judge Booth granted the mother's motion and ordered that the child be
immediately returned to the mother's care. On June 13, 2023, Judge
Booth entered an order, ex mero motu, that, among other things,
appointed a guardian ad litem ("the guardian ad litem") to represent the
interests of the child.
On June 16, 2023, the father filed a counterpetition in which he
sought, among other things, an adjudication of the paternity of the child
and an award of joint legal and joint physical custody of the child. On
June 19, 2023, the mother filed an answer to the father's counterpetition.
On September 1, 2023, the father's counsel filed a motion to withdraw;
that motion was granted the same day. On September 5, 2023, Judge
Booth conducted a status conference and entered an order that, among 5 CL-2024-0220
other things, noted that the father had appeared at the status conference,
pro se; ordered the father to pay to the mother $743 per month in
pendente lite child support; ordered the father to pay to the mother
$2,229 in retroactive child support within 14 days; and scheduled the
trial for November 7, 2023.
On September 19, 2023, new counsel for the father filed a notice of
appearance. On September 25, 2023, the father filed a motion for a
pendente lite hearing. On September 28, 2023, Judge Booth entered an
order scheduling a pendente lite hearing to take place on October 3, 2023,
before an appointed special master. A pendente lite hearing was
conducted on October 3, 2023, and, on October 10, 2023, an order was
entered that, in pertinent part, noted that the parties had negotiated a
pendente lite agreement pursuant to which the father was awarded
visitation with the child on alternating weeks from Friday through the
following Tuesday.
On October 11, 2023, the father filed a motion seeking the recusal
of Judge Booth and a transfer of the case to another circuit-court judge.
In his motion, the father again cited his alleged threat against Judge
Reynolds in 2019 as the basis for the request. Further, in his motion, the 6 CL-2024-0220
father asserted that, following the alleged 2019 threat, each of the circuit-
court judges in the 19th Judicial Circuit had recused from the previous
case, which, he said, had resulted in Judge Donald McMillan, Jr., a
circuit-court judge in Dallas County, being appointed to preside over the
previous case. As additional basis for his motion, the father asserted that
the mother's stepfather had been employed as a juvenile probation officer
in Elmore County for a number of years.
On October 11, 2023, the father filed a motion seeking the
disqualification of the guardian ad litem and requesting that a new
guardian ad litem be appointed for the child. In support of his motion,
the father asserted that, at a mediation that had occurred in June 2019,
the guardian ad litem currently serving on the case had disclosed that
she had a "close friendship" with the mother; that the child and the
guardian ad litem's child were "best friends"; and that the mother had
coached the athletic team of a daughter of the guardian ad litem. The
father also alleged that he had notified his previous counsel of the
guardian ad litem's potential conflict at the time of the guardian ad
litem's disclosure.
7 CL-2024-0220
On October 12, 2023, the guardian ad litem filed a response to the
father's motion requesting that Judge Booth recuse herself and that the
case be transferred to another judge; she also filed a response to the
father's motion for her disqualification. The guardian ad litem disputed
the father's assertion that she had disclosed that she and the mother
have a close relationship. She also asserted that, on June 15, 2023, two
days after she had been appointed to the case, she had sent an e-mail to
the father's first attorney and the mother's counsel to inform them that
she had a "loose association" with the mother's older child and asking
both attorneys to notify her if either party wished for her to decline the
appointment. According to the guardian ad litem, on June 16, 2023, she
had again e-mailed the father's counsel and had provided a second
opportunity for him to object to her appointment as the guardian ad
litem. Further, according to the guardian ad litem, during the time that
the father had been acting pro se, she had exchanged five e-mails with
the father. In her motion, the guardian ad litem asserted that, despite
her efforts to address any potential conflict, no party had objected to her
appointment. The guardian ad litem did, however, concede that the
8 CL-2024-0220
mother was one of four coaches of a cheerleading squad and that the
guardian ad litem's daughter had been a member of that squad.
On October 18, 2023, the mother filed separate responses to the
father's motion for recusal and to transfer the case and to the father's
motion for the appointment of a new guardian ad litem. Regarding the
father's request that Judge Booth recuse herself from the case, the
mother objected to the father's motion as having been untimely filed and
asserted that the request was merely a delay tactic that had been filed
one year after Judge Booth's appointment and one month before the
scheduled trial date. Regarding the father's request for the appointment
of a new guardian ad litem, the mother "adopt[ed] and incorporate[ed]"
the guardian ad litem's response to the father's request and generally
objected to the requested relief.
On October 24, 2023, Judge Booth entered an order denying the
father's motion to recuse and to transfer and the father's motion for the
appointment of a new guardian ad litem. The father subsequently filed
a motion to reconsider those rulings, which was denied on November 3,
2023.
9 CL-2024-0220
On November 6, 2023, the father filed a petition for the writ of
mandamus with this court seeking a writ directing Judge Booth to
recuse. On that same date, this court denied the father's petition by
order. See Ex parte Fraiser (No. CL-2023-0786, Nov. 6, 2023).
Following several continuances, the trial was eventually
commenced on November 7, 2023. However, during the trial, the father's
counsel suffered a medical issue that required her to seek immediate
medical attention. On the father's motion, the trial was scheduled to
resume on November 27, 2023.
Following the resumption and conclusion of the trial on November
27, 2023, the trial court entered a judgment on December 1, 2023, that,
in pertinent part, awarded the parties joint legal custody of the child;
awarded the mother "primary physical custody" of the child; 3 ordered
that both parents have "equal rights and responsibilities for major
decisions concerning the child, including, but not limited to, the
education of the child, health care, and religions training"; awarded the
3"Such an award is properly termed an award of 'sole physical custody' of a child. § 30-3-151(5), Ala. Code 1975." Ja.T. v. N.T., 353 So. 3d 558, 559 n.1 (Ala. Civ. App. 2021). 10 CL-2024-0220
father "custodial time" every other Thursday through the following
Tuesday, overnight visitation to occur on the Tuesday evening of his off
week, specific holiday visitation, and alternating weekly custodial time
during the summer; ordered the father to pay to the mother $1,102 per
month in child support; and denied all other requested relief.
On December 12, 2023, the father filed a verified postjudgment
motion. In his motion, the father asserted that, because the judgment
awarded him custodial time approximately 14 days per month during the
school year and equal time during the summer, the award was actually
an award of joint physical custody. Regarding the child-support award,
the father asserted that the trial court had erred in calculating his self-
employment income by not deducting ordinary and necessary business
expenses from his gross receipts to determine his monthly gross income
and by failing to apply the "new 2023 joint custody calculations." Lastly,
the father requested that the custodial periods be modified to award him
custodial time from every other Friday through the following Wednesday
and Tuesday overnight custodial time on his off week.
On December 28, 2023, the mother filed a postjudgment motion to
alter, amend, or vacate the judgment and for sanctions. In her motion, 11 CL-2024-0220
the mother argued, in pertinent part, that the trial court had failed to
take into consideration the father's acts of domestic violence directed at
her in determining the father's custodial time; that the father's custodial
schedule was "extremely disruptive" to the child, and that the holiday
schedule needed to be revised. The mother also asserted that the trial
court had erred by denying the mother's request for retroactive child
support.
Following a hearing on both parties' postjudgment motions, the
trial court, on February 13, 2024, entered an amended judgment that, in
pertinent part, maintained the award of joint legal custody; modified the
custody provision to describe the custodial award to the mother as sole
physical custody; awarded the mother final decision-making authority for
"major decisions such as education, health care, extracurricular and
religion"; modified the father's visitation periods to alternating weeks
from Friday through the following Tuesday; maintained the previous
$1,102 monthly child-support award; awarded the mother $6,612 in
retroactive child support to be paid within 45 days; and denied all other
requested relief. The father filed a timely appeal to this court.
12 CL-2024-0220
The Evidence
The father testified that he and the mother had previously been in
a dating relationship that had resulted in the birth of the child on
January 17, 2020. The father was present at the hospital when the child
was born, and he is listed as the child's father on her birth certificate.
According to the father, he and the mother had begun to experience
relationship issues in November or December 2020 and, he said, their
relationship had ended in April 2022.
The father lives in a four-bedroom, five-bath home Wetumpka. The
monthly mortgage on the father's home is $2,980. He admitted that,
before she filed her petition for custody in April 2022, he had not provided
any financial assistance to the mother for the benefit of the child.
According to the father, his first child-support payment to the mother
had occurred in September 2023, when, he said, he had paid the mother
four months of pendente lite child support.
The father testified that he had retired in September 2018 when he
sold his automobile-collision business to his brother. As part of the sale,
the father retained ownership of a building ("the building") that had
housed the former business. According to the father, since he had retired, 13 CL-2024-0220
he had restored several automobiles and had subsequently sold them. On
cross-examination, the father clarified that he had not sold any
automobiles in the two years immediately preceding the trial. He did,
however, admit that he had repaired a boat in April 2022 and that he had
been compensated for that work.
According to the father, at the time of trial, the building was being
rented for $6,500 per month and, he said, he was receiving an additional
$300 per month in rental income from Lamar Advertising for a billboard
sign located on the property. He testified that his expenses associated
with the building included a $3,750 monthly mortgage payment,
approximately $4,600 per year for property taxes, and between $2,500
and $2,700 per year for flood-insurance premiums.
The father admitted that he had been questioned regarding
alleged threats that he had made to Judge Reynolds when Judge
Reynolds had been presiding over an unrelated custody case. According
to the father, the father had participated in a grand-jury investigation
into his alleged threats and, he said, the grand jury had "no billed" the
case. The father testified that, despite the allegations that he had
threatened Judge Reynolds, he had been awarded, and, at the time of 14 CL-2024-0220
trial, was exercising, alternating weekly custodial periods with the child
who was the subject of the previous, unrelated custody case.
The father denied that he had ever threatened the mother. He,
however, admitted to an incident that had occurred between him and the
mother during which he had discharged a firearm. According to the
father, on that occasion, the mother had been at his home and had gotten
upset when she discovered that he had received several text messages
from another woman. He explained that, as the mother was loading her
automobile to leave the father's home, she indicated that she had
damaged two of the father's automobiles. The father testified that, when
he checked the automobiles, he had not found any damage, but, he said,
the mother had indicated that the damage was not easy to find.
Thereafter, according to the father, the mother had refused to leave his
property as he had requested, so, he said, he discharged his firearm into
the ground. He denied that the mother had been placed in any danger
because he had not fired the gun in her vicinity. Also, according to the
father, the mother had returned to his home two days after that incident,
and the child had resumed visiting a day or two after the mother had
15 CL-2024-0220
returned. He admitted that his actions had not been an appropriate
response to the situation.
The father testified that, since the child's birth in 2020, he had seen
the child every other day, if not daily. That frequent contact, however,
had waned, he said, when the mother filed her petition for custody.
According to the father, after the mother filed her custody petition, the
periods between his visits with the child had "started stretching out to
weeks at a time." He opined that the reduction in his visitation was
attributable to the mother's pending petition. Further, he testified that
he had encountered difficulty when trying to speak with the child when
the child was in the mother's care. He stated that, following the entry of
the pendente lite order, there had been four or five occasions on which
his daily telephone call with the child had been denied by the mother.
The father expressed concerns for the mother's ability to parent the
child. He generally questioned the child's safety in the company of the
individuals with whom the mother associated. When questioned why he
had not raised his concerns regarding the mother's social circle earlier,
he clarified that those concerns had followed his receiving new
16 CL-2024-0220
information during the pendency of the case and that he had shared those
concerns with his counsel.
Regarding the mother's physical health, he said that the mother
had previously told him that she was suffering from a brain tumor and
that, on June 15, 2019, he had received a text message from her
informing him that her tumor had shrunk. According to the father, he
had not received any update from the mother on her brain tumor, so, he
said, he was unsure if that was on ongoing medical issue at the time of
the trial.
Regarding the mother's mental health, the father testified that, on
April 27, 2019, the mother had sent him a text message in which she had
threatened to commit suicide. The father also expressed concern for the
mother's alcohol consumption, which, he said, was excessive. According
to the father, the mother had continued to consume alcohol during her
pregnancy and his attempts to stop that behavior had been unsuccessful.
The father testified that he has two other children and that he had,
either by agreement or by court order, exercised equal parenting time
with those children. He requested that he be awarded joint legal and
17 CL-2024-0220
joint physical custody of the child and that the parties equally divide the
child's expenses.
Taylor Nickels testified that she had met the mother in 2021 when
she and the mother were coworkers at Cracker Barrel. According to
Nickels, she and the mother had become friendly and had traveled
together. Nickels testified that, in July 2021, she, the mother, the father,
and several other individuals had traveled to Panama City where, she
said, she had observed the mother purchase the father's meals and pay
for the hotel room.
According to Nickels, after returning home from that trip, she had
been out running errands and had received a text message from the
mother that had stated: "I need you." Upon arriving at the mother's
home, Nickels said that she had located the mother sobbing while talking
on the telephone with the father. According to Nickels, she had
overheard the father tell the mother that it was her fault that she had
gotten pregnant and that she would have to deal with the consequences
herself. Also, according to Nickels, she had overheard the father threaten
to "pour a bottle of vodka down [the mother's] throat, take her to the
canal, push her in, and that if anybody asked, he would say I guess she 18 CL-2024-0220
just got drunk and drowned." Nickels confirmed that she had not seen
similar behavior from the father during the Panama City trip.
Nickels denied that she had ever seen the mother drunk while
parenting the child and denied that she had ever seen the mother use
illegal drugs. She opined that the mother was a "really good mom."
Regarding her observations of the father's and the child's interactions,
Nickels confirmed that she had never seen the father angry, acting rude,
or yelling at the child. Nickels opined that the father had been attentive
and loving to the child and that the father was "absolutely" a good dad.
The mother testified that, excluding a year that she had resided in
Prattville, she had resided with her mother and her stepfather in their
four-bedroom, two-bath home for the approximately six-year period
immediately preceding the trial. According to the mother, the child and
the child's older half-sibling share a bedroom.
At the time of the trial, the mother was employed by Cracker
Barrel, where she had worked as a server for approximately eight years.
She reported that her work hours are Monday through Friday from "8:00
[a.m.] or 9:00 [a.m.], to 2:00 [p.m.] or 3:00 [p.m.]." According to the
mother, her tips varied but, she said, she earned approximately $2,881 19 CL-2024-0220
per month in gross income from her employment. In addition to her
employment income, the mother testified that she also received food
stamps. According to her, she had used her food-stamp benefits to
purchase food for the father on more than one occasion. Regarding the
father's employment status, the mother testified that she was "not 100%
sure" whether he continued to work on automobiles, but, she said, she
assumed that he did. She asked that she be awarded a "minimum" of
$1,102 per month in child support and that the child-support award be
retroactive to the date of the filing of her custody petition.
The mother testified that the child was in a K-3 daycare program
provided by the Holtville Child Development Program. According to her,
the child's daycare program had its own curriculum to prepare the
children for kindergarten. She expressed concern that the father had, at
times, failed to take the child to the daycare on the Mondays that he had
had the child for his vitiation. According to the mother, she had discussed
her concerns with the father, who, she said, had responded, on different
occasions, that the child had not attended daycare due to illness, that he
had wanted to spend more time with the child, and that he and the child
20 CL-2024-0220
had traveled to the beach. The mother said that she had brought her
concerns to the attention of the guardian ad litem.
The mother disputed the father's testimony regarding his visitation
with the child before the mother filed her custody petition. According to
her, the father had seen the child two or three times a week and not daily
or every other day as the father testified. Further, according to the
mother, before she filed her petition, she and the child had stayed
overnight with the father on approximately 20 occasions but, she said,
the father had never exercised an overnight visit alone with the child.
The mother also testified that, until February 2023, the father had
"[v]ery rarely" visited the child. She said that, at that time, by
agreement, the father had begun to exercise visitation every week from
Friday through Sunday but that the schedule had later been modified
such that the father's visitation ended on Mondays.
Regarding the father's discharging of the firearm, the mother
testified that, on that day, she had gone through the father's cellular
phone and had discovered that he had been texting another woman. The
mother stated that, upon discovering those text messages, she had
informed the father that she was leaving his home. She admitted that 21 CL-2024-0220
she had been angry at that time and that she had told the father that she
had "put a dent in one of his vehicles and good luck finding it." According
to the mother, thereafter, the father had followed her out of the house
while carrying a firearm. Once outside, she said, the father had pointed
the gun at her, had discharged the firearm, and had then shattered the
windshield of her automobile by striking it with the firearm.
The mother denied that she had actually damaged either of the
father's two automobiles and admitted that her falsely claiming to the
father that she had damaged his automobiles had been "mean and petty."
According to the mother, she had completed a police report with the
Elmore County Sheriff's Office regarding the incident, but, she said, she
had not pressed charges against the father. She denied that the father
had threatened her to get her not to press charges but, she said, she had
been scared that he would harm her if she pressed charges against him.
She was unable to recall whether she had returned to the father's home
the following Monday as testified to by the father, but she admitted that
the father had replaced her windshield the Monday following the
incident, that the father had apologized for the incident, and that the
22 CL-2024-0220
parties had continued a dating relationship thereafter, which had
resulted in her becoming pregnant with the child.
The mother denied that she had consumed alcohol while pregnant
with the child. In fact, she denied that she had ever been intoxicated
while pregnant with either of her children. She also denied that she had
ever used drugs.
Regarding her alleged relationship with the guardian ad litem, the
mother admitted that she had known the guardian ad litem before she
was appointed to serve in this case, but she denied that the guardian ad
litem had ever been to her home, that the two had ever been shopping
together, or that she and the guardian ad litem had ever been out to
dinner together. According to the mother, before the guardian ad litem
was appointed to serve in this case, the only contacts between the two
had consisted of one conversation that had occurred at the guardian ad
litem's child's birthday party that the mother's eldest daughter had
attended and interactions between the two that had occurred when the
mother had coached one of the guardian ad litem's children as part of the
Holtville Youth League.
23 CL-2024-0220
The mother testified that she had experienced complications in her
pregnancy that had resulted in the child's being born with heart issues
and hip dysplasia. Following her birth, the child's medical issues had
required frequent medical care at Children's Hospital in Birmingham
and with a cardiologist in Montgomery. According to the mother, for the
first year of the child's life, she had informed the father of the child's
medical appointments, but, she said, the father had not attended any of
those appointments. At that time, according to the mother, the father
had been questioning the child's paternity. She denied that she had told
the father that he was not the biological father of the child.
By the second year of the child's life, the mother said, the child's
medical appointments had slowed in frequency. According to her, at that
time, the child was required to visit her orthopedist and cardiologist
every three months. The mother testified that, despite the decline in
frequency, the father had failed to attend any of the child's medical
appointments during that time.
At the time of trial, the child was almost four years old and was
required to visit her orthopedist and cardiologist once per year.
According to the mother, the father's involvement with the child's 24 CL-2024-0220
medical appointments had consisted of his taking the child to an eye
doctor's appointment at the end of 2020 or the beginning of 2021 and his
taking the child to a medical appointment during the pendency of the
action.
Regarding the father's alleged previous threats directed toward
Judge Reynolds, the mother testified that the father had told her that he
had threatened to kill Judge Reynolds, as well as several other
individuals, because, he had said, they had taken custody of the child who
was the subject of that action from him. Further, according to the
mother, at that time, the father had told her that he had intended to use
a gun with a silencer.
When questioned why she had not ended her relationship with the
father, the mother testified that she had just gone through a custody
matter with her eldest daughter whose father was not active in that
child's life and that she did not want the child to "go without seeing her
father." According to the mother, she had been willing to assume the risk
to her safety and ignore the father's threats because, she said, the father
was a "good dad" who was good to the child.
25 CL-2024-0220
The mother requested that she and the father be awarded joint
legal custody and that she be awarded sole physical custody of the child.
Regarding the father's visitation, the mother requested that he be
awarded visitation every other week commencing after school on Fridays
until the following Tuesday morning, as well as specified holiday
visitation periods. Regarding child support, the mother testified that, at
the time of trial, the father was paying $743 per month in child support
and that, by October of 2023, he had paid a total of five months of child
support, which, according to her, totaled $3,715.
The mother denied that she had ever suffered from a brain tumor
and denied that she had ever threatened to commit suicide. She testified
that she had no idea where either of those allegations had come from.
Analysis
The father first argues that Judge Booth erred when she failed to
recuse herself from the case because, he says, there was evidence
indicating that that Judge Booth's impartiality might reasonably be
questioned.
"A trial judge's ruling on a motion to recuse is reviewed to determine whether the judge exceeded his or her discretion. See Borders v. City of Huntsville, 875 So. 2d 1168, 26 CL-2024-0220
1176 (Ala. 2003). The necessity for recusal is evaluated by the 'totality of the facts' and circumstances in each case. [Ex parte City of] Dothan Pers. Bd., 831 So. 2d [1, 2 (Ala. 2002)]. The test is whether ' "facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge." ' In re Sheffield, 465 So. 2d 350, 355-56 (Ala. 1984) (quoting Acromag-Viking v. Blalock, 420 So. 2d 60, 61 (Ala. 1982))."
Ex parte George, 962 So. 2d 789, 791 (Ala. 2006).
The father argues that, in 2019, he had been involved in litigation
regarding the custody of another child and that, during that litigation,
events had transpired that had required all the circuit-court judges in
the 19th Judicial Circuit to recuse themselves. According to the father,
at that time, Judge Booth was a district judge who had worked for many
years with the circuit-court judges who had recused themselves. In his
brief to his court, the father does not discuss the specifics of the 2019
"events" but surmises that all the judges that are currently serving in the
19th Judicial Circuit are "too closely related to the events that occurred
in 2019 to hear this matter with no prejudices due to their professional
relationships." The father's brief, p. 6.
Evidence adduced at trial regarding the 2019 events established
that the father had allegedly threatened Judge Reynolds, who, at that
27 CL-2024-0220
time, was presiding over the father's custody action involving one of the
father's other children. As argued by the father, the alleged threat had
resulted in Judge Reynolds and the other then-serving circuit-court
judges of the 19th Judicial Circuit recusing themselves. In her brief to
this court, the mother argues, among other things, that the father waived
the issue of Judge Booth's recusal by not timely asserting his claim
regarding Judge Booth's alleged bias. Specifically, the mother argues
that the father's motion seeking Judge Booth's recusal was untimely
because it was filed one year after her appointment to the case and one
month before the trial.
In Ex parte Parr, 20 So. 3d 1266 (Ala. 2009), our supreme court
considered a similar argument regarding the alleged waiver of the issue
of a judge's recusal. In Parr, a defendant in a pending civil action
petitioned our supreme court for a writ of mandamus directing the trial
judge in that case to grant her motion seeking the judge's recusal, which
request had been made 14 months after the commencement of the action
and almost 3 weeks after the entry of a scheduling order. 20 So. 3d at
1267-68. Our supreme court noted that, in Price v. Clayton, 18 So. 3d
28 CL-2024-0220
370, 376 (Ala Civ. App. 2008), this court had stated the principles
applicable to a waiver of the issue of a judge's recusal:
" 'A motion to recuse "should be filed at the earliest opportunity because 'requests for recusal should not be disguises for dilatoriness on the part of the [moving party].' " Johnson v. Brown, 707 So. 2d 288, 290 (Ala. Civ. App. 1997) (quoting Baker v. State, 52 Ala. App. 699, 700, 296 So. 2d 794, 794 (Ala. Crim. App. 1974)). The issue of recusal may be waived if it is not timely asserted. Knight v. NTN-Bower Corp., 607 So. 2d 262, 265 (Ala. Civ. App. 1992).'
"See also Ross v. Luton, 456 So. 2d 249, 255 (Ala. 1984) ('The disqualification of a trial judge for interest or prejudice may be waived if the parties proceed to trial without objection.'). Accord, 46 Am. Jur. 2d Judges § 208 ('An untimely objection or motion to disqualify a judge waives the grounds for recusal. The reason for this rule is to prevent litigants from waiting to see whether they win, and if they lose moving to disqualify the judge.' (footnotes omitted))."
20 So. 3d at 1270 (emphasis in original). The defendant in Parr
attributed her delay in seeking the trial judge's recusal to her lack of
awareness of the facts that had created the alleged conflict. In denying
the defendant's mandamus petition, our supreme court determined that
the facts of the case established that the defendant "knew or should have
known," id. at 1270, of the facts that had led to the trial judge's alleged
conflict and that the defendant had waived her right to seek the trial 29 CL-2024-0220
judge's recusal by "inadequately explaining her delay in doing so." Id. at
1271.
Similar to Parr, in this case, the father sought Judge Booth's
recusal 12 months after her assignment to the case. Unlike in Parr, the
father has not provided to this court any justification for his delay in
seeking Judge Booth's recusal. In fact, in his brief to this court, the father
is silent to the timing of his motion seeking Judge Booth's recusal. As
our supreme court determined in Parr, we find that the father waived his
right to seek Judge Booth's recusal by failing to assert that claim in a
timely manner and by inadequately explaining his delay in doing so.
Next, the father argues that the trial court erred by failing to
disqualify the mother's attorney based on an alleged conflict of interest
because, he said, the attorney had formerly represented the father in an
unrelated civil matter.
Rule 1.9 of the Alabama Rules of Professional Conduct provides:
"A lawyer who has formerly represented a client in a matter shall not thereafter:
"(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the
30 CL-2024-0220
interests of the former client, unless the former client consents after consultation; or
"(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 [of these Rules] would permit or require with respect to a client or when the information has become generally known."
Our supreme court has previously held:
"A former client seeking disqualification for the conflict addressed in Rule 1.9[, Ala. R. Prof. Cond.,] must demonstrate (1) that it 'had an attorney-client relationship with the attorney the former client seeks to disqualify and [(2)] that the attorney represented the former client in a [(3)] substantially related matter.' "
Ex parte Tiffin, 879 So. 2d 1160, 1165 (Ala. 2003) (quoting Ex parte
Intergraph Corp., 670 So. 2d 858, 860 (Ala. 1995)).
In his brief to this court, the father argues that the mother's counsel
had previously represented him in a "civil matter" in 2021 and that, as
part of his representation, the mother's attorney had obtained "intimate
details of the [father's] business relationships and income." The father's
brief, p. 8. The father posits that those facts satisfy each of the three
elements that a former client must establish when seeking
disqualification under Rule 1.9. See Tiffin, supra.
31 CL-2024-0220
The mother, in her brief to this court, concedes that, in October
2021, her counsel had written a letter on the father's behalf to the father's
brother regarding a dispute over a lease, but denies that that letter was
substantially related to the current action because, she says, "[i]ssues
with a lease would in no way necessitate the level of disclosures of
business finances and relationships as is alleged by the [f]ather." The
mother's brief, p. 12. Further, the mother argues that the father has
"failed to meet his burden by failing to produce any evidence that proves
[her] counsel did, in fact, have prejudicial information and significantly
represented the [f]ather's adverse interests in a substantially related
matter." The mother's brief, p. 12.
The supreme court has previously held that
" ' [t]he substantial relationship test is the keystone of the law on conflicts of interests involving former clients.' 1 Lawyers' Manual on Professional Conduct (ABA/BNA) 51:221 (2004) (hereinafter 'Lawyers' Manual'). '[T]he test entails inquiry into the similarity between the factual situations, the legal issues posed, and the nature and extent of the attorney's involvement to see if information from the prior representation is material to the new representation.' Lawyers' Manual 51:225. See also Ex parte State Farm Mut. Auto. Ins. Co., 469 So. 2d 574, 575-76 (Ala. 1985). The Comment to Rule 1.9 states:
32 CL-2024-0220
" 'The scope of a "matter" for purposes of paragraph (a) may depend on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.... The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.' "
Ex parte Regions Bank, 914 So. 2d 843, 848 (Ala. 2005).
Initially, we note that the record on appeal contains evidence that
establishes that the father had had an attorney-client relationship with
the mother's counsel and that the mother's counsel had previously
represented the father. See Tiffin, supra. The issue, therefore, is
whether the mother's counsel's drafting of a letter pertaining to issues
between the father and his brother regarding the father's intent not to
renew a lease is "substantially related" to the current child-custody
matter. Id.
33 CL-2024-0220
Regarding the factual similarities between the current child-
custody matter and the lease-renewal issue, the record on appeal does
not contain evidence establishing that the operative facts of those two
matters are substantially related. See Regions Bank, supra. Likewise,
the legal issues germane to those two actions seem widely divergent. Id.
It is undisputed that the nature and extent of the mother's counsel's
previous legal work for the father consisted solely of his drafting a letter
on the father's behalf. If, however, as the father avers, the mother's
counsel received information regarding the father's "personal and
business interests" and the income derived therefrom, that information
would be material to the attorney's representation of the mother in a
child-custody matter in which child support is at issue.
Presuming, without deciding, that, as part of his previous
representation of the father, the mother's counsel had, in fact, received
confidential information regarding the father's income, under the
particular facts of this case, we conclude that the mother's counsel would
not be disqualified from his current representation of the mother by Rule
1.9. The mother's counsel's previous representation of the father
occurred in October 2021. According to the father's testimony, at that 34 CL-2024-0220
time he had an ongoing business restoring automobiles and selling them
for profit. However, the father testified that his employment status had
changed two years before the November 2023 trial, i.e., in November
2021, when he said, he had ceased his automotive restoration business.
Thus, any information regarding the father's income obtained in October
2021 would have become irrelevant upon the father's ceasing those
income- producing activities the following month. Additionally,
regarding information allegedly disclosed to the mother's counsel
regarding the father's "business relationships," at trial, the father
testified that he had no ongoing business dealings. Thus, any
information regarding the father's "business relationships" in 2021 was
also irrelevant by the time of the trial.
Next, the father argues that the guardian ad litem erred when she
failed to disqualify herself. In his brief to this court, the father fails to
direct this court to any authority to support his argument. Rule
28(a)(10), Ala. R. App. P., requires an appellant who is arguing that a
trial court has committed a reversible legal error to present this court
with relevant legal authority showing that error and that, if the appellant
fails to do so, the appellant waives the argument. See Moore v. 35 CL-2024-0220
Prudential Residential Servs. Ltd. P'ship, 849 So. 2d 914, 923 (Ala. 2002).
This court has no duty to "address legal arguments for a party based on
undelineated general propositions not supported by sufficient authority
or argument." Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala.
1994) (declining to consider argument that employment-at-will doctrine
violated Equal Protection Clause of Fourteenth Amendment to the
United States Constitution because argument was unsupported by any
relevant legal authority). Accordingly, we do not further consider the
father's argument on this issue.
Next, the father argues that the trial court erred in calculating the
father's child-support obligation by not deducting his ordinary and
necessary business expenses from his self-employment income. We
agree.
This court has previously held that,
"[u]nder the well-established ore tenus rule, the trial court's judgment is presumed correct; this court will not reverse the judgment absent a showing that the trial court's findings are plainly and palpably wrong or that the trial court abused its discretion. Tompkins v. Tompkins, 843 So. 2d 759, 764 (Ala. Civ. App. 2002). Moreover, matters relating to child support 'rest soundly within the trial court's discretion, and will not be disturbed on appeal absent a showing that the
36 CL-2024-0220
ruling is not supported by the evidence and thus is plainly and palpably wrong.' Bowen v. Bowen, 817 So. 2d 717, 718 (Ala. Civ. App. 2001)."
Scott v. Scott, 915 So. 2d 577, 579 (Ala. Civ. App. 2005).
The trial court's amended judgment awarded the mother $1,102 per
month in child support. A Form CS-42 Child Support Guidelines form
("the CS-42 form") included in the record on appeal indicates that the
mother's monthly gross income was $2,881 per month and that the
father's monthly gross income was $6,800. 4
The father testified that he receives $6,500 per month in rental
income for a building that he owns and an additional $300 per month
from Lamar Advertising for signage located on the same property. He
further testified that he incurs $4,223 in monthly expenses associated
with the building, including a $3,750 monthly mortgage payment,
$167.75 per month for flood insurance, and $303.25 per month for
property taxes. In his brief to this court, he argues that his $4,223 in
monthly expenses are ordinary and necessary expenses and, therefore,
4The CS-42 form was prepared by the mother's counsel; however, it
is evident that the trial court adopted those calculations in setting the father's monthly child-support obligation. 37 CL-2024-0220
that the trial court erred when it failed to deduct those expenses from his
gross receipts to calculate his monthly gross income for child-support
purposes.
Rule 32(B)(3), Ala. R. Jud. Admin., provides:
"Self-employment income.
"(a) For income from self-employment, rent, royalties, proprietorship of business, or joint ownership of partnership or closely held corporation, 'gross income' means gross receipts minus ordinary and necessary expenses required to produce this income, as allowed by the Internal Revenue Service, with the exceptions noted in subsection (B)(3)(b).
"(b) 'Ordinary and necessary expenses' does not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support."
We disagree with the trial court's implicit determination that
mortgage payments, flood-insurance premiums, and property taxes
associated with the building are not ordinary and necessary expenses
that are appropriate for determining the father's gross income for child-
support-calculation purposes. See Rule 32(B)(3)(b). Accordingly, we
reverse the trial court's amended judgment ordering the father to pay the 38 CL-2024-0220
mother $1,102 in monthly child support and remand the case for the
recalculation of the father's monthly child-support obligation in
accordance with this opinion. Further, because we are reversing the
amended judgment for the recalculation of the father's monthly child-
support obligation, we also reverse the amended judgment to the extent
that it awarded the mother retroactive child support and remand this
matter for the recalculation of the amount the father owes in retroactive
child support.
The father further argues, albeit in different terms, that the trial
court erred when it amended the custody and visitation provisions of the
original judgment following a postjudgment hearing.
"[An appellate c]ourt reviews a trial court's rulings on postjudgment motions to determine whether the trial court exceeded its discretion. See Flagstar Enters., Inc. v. Foster, 779 So. 2d 1220, 1221 (Ala. 2000).
" 'Whether to grant or deny a postjudgment motion filed pursuant to Rule 59[, Ala. R. Civ. P.,] is within the sound discretion of the trial court. Flagstar Enters., Inc. v. Foster, 779 So. 2d 1220 (Ala. 2000). We will not disturb the exercise of that discretion unless the trial court exceeded the permissible limits of its discretion. Flagstar, 779 So. 2d at 1221; Comalander v. Spottswood , 846 So. 2d 1086 (Ala. 2002).' "
39 CL-2024-0220
"Borders v. City of Huntsville, 875 So. 2d 1168, 1176 (Ala. 2003). 'Abuse of discretion by a trial court in granting a Rule 59(e) motion can be found only where a legal right was abused and the record plainly and palpably shows the trial court was in error.' Lockhart v. Phenix City Inv. Co., 488 So. 2d 1353, 1354 (Ala. 1986)."
Chapman v. Smith, 893 So. 2d 293, 295 (Ala. 2004).
The father challenges the "court's ability to unilaterally amend its
visitation award when no new evidence was presented following the final
trial." The father's brief, p. 12. Motions filed pursuant to Rule 59, Ala.
R. Civ. P., specifically allow a trial court, sitting without a jury, to
reconsider the evidence upon which it based its judgment or to rehear
arguments regarding the legal considerations underlying that judgment.
See Lawrence v. Lawrence, 117 So. 3d 723, 727 (Ala. Civ. App. 2013).
However, a trial court is not limited to considering only those arguments
advanced to it in a postjudgment motion.
"Although a trial court generally loses jurisdiction to amend its judgment 30 days after the entry of judgment (see Ex parte Owen, 420 So. 2d 80, 81 (Ala. 1982)), a trial court retains the power to correct sua sponte any error in its judgment that comes to its attention during the pendency of a party's Rule 59(e) motion to alter, amend, or vacate the judgment, regardless of whether the error was alleged or not alleged in the motion. See, e.g., Varley v. Tampax, Inc., 855 F.2d 696, 699 (10th Cir. 1988); Charles v. Daley, 799 F.2d 343,
40 CL-2024-0220
347 (7th Cir. 1986); Arnold v. Sullivan, 131 F.R.D. 129, 133 (N.D. Ind. 1990)."
Henderson v. Koveleski, 717 So. 2d 803, 806 (Ala. Civ. App. 1998). Thus,
we find no merit on this point.
We further reject the father's complaint that the trial court's
amendments to its judgment were not supported by "new evidence …
presented following the final trial." The father's brief, p. 12. The
presentation of "new evidence" is not proper in postjudgment
proceedings. See Marsh v. Smith, 67 So. 3d 100, 107- 08 (Ala. Civ. App.
2011) (quoting Bates v. State, 503 So. 2d 856, 85 8 (Ala. Civ. App. 1987))
(explaining that " '[r]elief is barred when it is based on [new] evidence
because trials would have the potential to become never-ending' ").
Lastly, to the extent the father argues that awarding the mother
sole physical custody of the child violated his "constitutional right to
make decisions for the child," we disagree. The father's brief, p. 14-
15. Pursuant to Ala. Code 1975, § 30-3-151(2), the trial
court "may designate one parent to have sole power to make certain
decisions while both parents retain equal rights and responsibilities for
other decisions." (Emphasis added.) Accordingly, we conclude that the
41 CL-2024-0220
trial court did not exceed its discretion in designating which parent would
have final decision-making authority on issues regarding the child.
Conclusion
For the foregoing reasons, we reverse the trial court's amended
judgment insofar as it failed to deduct the father's ordinary and
necessary business expenses from his self-employment income for
purposes of calculating the father's monthly child-support obligation and
insofar as it calculated the amount of the father's retroactive child-
support obligation, and we remand the case for the entry of a judgment
consistent with this opinion. We affirm all other aspects of the trial
court's amended judgment.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Moore, P.J., and Hanson and Fridy, JJ., concur.
Lewis, J., recuses himself.