Appellate Decision Final Upon Certificate of Judgment; Temporary Custody Order Not Appealable
The two principles reflected in this entry’s headline emerge from a small thicket of procedural dates and overlapping appellate decisions. These need not be tracked too closely to follow the salient points of law.
Much of S.J.R. is occupied in recounting the case’s earlier appellate activity. The circuit court had previously entered a judgment removing custody of the minor child from the mother to the father. The Court of Civil Appeals reversed this decision and ordered a new trial. Over the next two years, the father sought rehearing and then certiorari review of the appellate decision, but was unsuccessful. When his efforts at further review had run their course, the Court of Civil Appeals issued its certificate of judgment — roughly twenty months after its initial decision, on January 18, 2006.
In the interim the mother had taken further action in the trial court. After the Court of Civil Appeals’ opinion, but before its certificate of judgment, she moved the trial court to return her physical custody of the child. The circuit judge denied this motion on December 8, 2004, and the mother appealed. Though it affirmed the lower court’s decision, the Court of Civil Appeals explained that the December 2004 order was not final, so that the mother’s appeal should have been treated as a petition for mandamus. The court wrote:
It is well settled that a judgment of [a Court of Appeals] is not final until that court issues its certificate of judgment, and an application for rehearing and a petition in [the Alabama Supreme] Court for writ of certiorari stay the issuance of that certificate.
(Quotation omitted) (interpolations in S.J.R.).
Though the mandated new trial was not conducted, the case saw a flurry of activity in 2006 — well after the Court of Civil Appeals’ certificate of judgment. This resulted in the circuit court issuing another temporary order keeping custody of the child with the father. From this order the mother again appealed. She also brought a separate (but then consolidated) mandamus action seeking recusal of the circuit judge. It is this activity that the decision of November 16, 2007 addresses.
The Court of Civil Appeals repeated that the trial judge’s award of temporary custody to the father was not a final order that would support an appeal. The mother’s appeal was consequently dismissed. Her mandamus petition fared better. The circuit judge had engaged throughout the litigation in ex parte communications with a court-appointed child counselor. The Court of Civil Appeals called this impermissible and “dispositive” on the recusal issue. The appellate court added that the trial court had also failed to “expeditiously respond to” the initial reversal by holding a new trial. The court thus granted the writ of mandamus and ordered the trial judge to recuse himself.