This opinion is subject to formal revision before publication in the advance sheets of
THOMPSON, Presiding Judge.
James Driggers ("the father") appeals from a judgment divorcing him from Loryn Driggers ("the mother"), awarding the parties joint legal custody of their child ("the child"), and awarding the mother sole physical custody of the child subject to the father's visitation rights.
The statement of the facts the father included in his appellate brief is less than two pages. Although he includes additional facts in the argument portion of his brief, those facts support his contentions on appeal and are not part of a full, narrative rendition of facts as required by Rule 28(a)(7), Ala. R. App. P. This court has studied the full record on appeal. The evidence adduced during the May 16, 2016, trial of this case tends to show the following. The parties married on February 4, 2011.
The mother testified that, at the time of the trial, she worked at a dentist's office as the "front desk coordinator" earning $12.50 an hour. She also worked at a restaurant at night on occasion. She said that she was usually home by 9:00 or 9:30 p.m. those nights, depending on how crowded the restaurant was. The mother testified that, after the father and she separated, she only "filled in" at the restaurant occasionally. During the parties' marriage, the mother had held several jobs, including working for Hyundai Motor Manufacturing of Alabama ("Hyundai") and for a local automobile dealership. The mother acknowledged that her job with Hyundai was terminated after she was involved in a physical altercation with another employee. She said that she had worked at the automobile dealership for "a week or so."
The father testified that he earns approximately $98,000 annually but that his income fluctuates. He works as an assistant manager of the body shop at the Hyundai plant. In that position, the father is required to rotate his work schedule among the three shifts at the plant. He said that when he works first shift, his hours are from 6:15 a.m. to 3:00 p.m. His hours on second shift are from 2:15 p.m. to 11:00 p.m.; third shift hours are from 10:15 p.m. to 7:00 a.m. The mother testified that the father worked between 11 and 12 hours each day, regardless of which shift he was working. The mother testified that the father's working hours, as well as his need to sleep during the day when the child would be with him, was a primary reason for her belief that she should have custody of the child.
The mother testified that she was the child's primary caretaker. For example, the mother said, she was the parent who took the child to doctors' appointments. The mother also said that, before the parties separated, the father was either at work or asleep during much of the child's waking hours. She also asserted that, when he worked second shift, the father would leave work early enough to go out and sing at a karaoke bar as often as three nights a week rather than come home to spend time with the family.
The father testified that he enjoyed singing karaoke but that he went out to do so only once a week when his work hours permitted. He said that, because the parties were sharing custody, he had spent much more time with the child since the parties had separated. He said that he had always enjoyed spending time with the child and that, when his work schedule had allowed, he had bathed the child and put her to bed.
The parents conceded that they had different parenting styles. The mother described herself as a disciplinarian. The father disagreed with the mother's stricter approach with the child. A neighbor who testified on behalf of the father said that she had seen the mother discipline the child. Although she would not characterize the mother's discipline as "inappropriate," the neighbor did say that the mother was more "stern" with the child than was the father.
The father testified that the mother had anger and honesty issues. In addition to the evidence regarding the circumstances surrounding the termination of the mother's employment with Hyundai, the father elicited evidence indicating that, in 2005, when the mother was a minor, she was arrested for writing a worthless check. It is unclear whether she was convicted of that offense. In 2010 or 2011, the mother said, she was arrested for theft of property in connection with a deposit that had not been made at the business she had worked for years earlier. The mother denied that she had played any role in the missing money and stated that the charge had been dismissed. The father also presented evidence indicating that, since the parties' separation, the mother had been involved in an altercation at a bar one night. The details of the altercation were disputed, but the fight was between the mother and a woman with whom, the mother said, she believed the father was having an affair. The father was not present at the time.
The father testified that he wanted to have custody of the child half of the time. If that was not possible, he said, he wanted sole physical custody of the child. He said that he had people ready and willing to help him with the child when he had to work. When he worked first shift, the father testified, he would wake the child up at 5:30 a.m. "and get her started." He also said that, when he had to work third shift, he was willing to take the child to the mother's house before he left for work so that the child could go to bed, then awaken and prepare for school at the mother's house.
The father remains in the marital residence; the mother has moved to a nearby town. No evidence was presented regarding where the child attended school, the amount of time she had to travel from each party's house to reach the school, or other similar topics.
The guardian ad litem, who the father had asked to be appointed to represent the child, recommended to the trial court that the mother "be vested with primary physical custody" of the child. In support of his recommendation, the guardian ad litem stated that the father's "work schedule makes it extremely difficult for him to personally provide primary physical custody." He also noted that the parties had an "inability to co-parent" and that, therefore, joint physical custody would be highly unlikely to succeed. The guardian ad litem also recommended that the father be granted "extremely liberal visitation" with the child.
On June 10, 2016, the trial court entered the judgment divorcing the parties. On the issues involving custody, the trial court awarded the parties joint legal custody of the child "and [ordered] that primary physical custody of [the] child" be vested with the mother, subject to the award of standard visitation to the father. The trial court made clear that, in light of the father's custody of the half sister and his work schedule, the parties could mutually agree to "formally adjust the schedule of visitation" within 30 days of the entry of the judgment and that the trial court would "consider amending the schedule" to the mutually agreeable schedule.
The trial court went on to state the following in the judgment:
The father filed a timely motion to alter, amend, or vacate the judgment, raising a number of issues. In the motion, the father requested a hearing. The mother and the guardian ad litem both responded to the motion. The trial court never ruled on the father's postjudgment motion, which was deemed denied by operation of law.
On appeal, the father argues that the trial court erred by failing to hold a hearing on his motion to alter, amend, or vacate the judgment.
In his postjudgment motion, and again in his appellate brief, the father argued that the trial court erred in not allowing him the opportunity to question the guardian ad litem after the guardian ad litem submitted his report and recommendations to the trial court. The record demonstrates that the guardian ad litem's report was submitted to the trial court after the trial was completed. In its judgment, the trial court stated that it had "given considerable weight to the report and opinion of the Guardian
In this case, the guardian ad litem's recommendation that the mother be vested with "primary physical custody" was not presented as evidence. The guardian ad litem asked questions of witnesses, but he did not serve as a witness himself. The father was not given an opportunity to challenge the guardian ad litem's report, findings, impartiality, or recommendations. Thus, we conclude that the trial court's denial of the father's postjudgment motion injuriously affected the father's substantial rights, and, therefore, the denial of a hearing on the motion was not harmless. The trial court erred to reversal by not holding such a hearing.
The father also asserted in his postjudgment motion and on appeal that the trial court erred by not allowing the father to present all of his witnesses during the trial.
Because the trial court erred in not holding a hearing on the father's postjudgment motion, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion. Consequently, consideration of issues the father raised on appeal that are not addressed in this opinion are pretermitted.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Pittman, Thomas, Moore, and Donaldson, JJ., concur.