Rel: February 3, 2023

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, 2022-2023

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Alise N. Ellis

v.

Michael Wayne Duncan

Appeal from Montgomery Circuit Court

(DR-19-900733)

THOMPSON, Presiding Judge.

Alise N. Ellis ("the mother") appeals the judgment of the

Montgomery Circuit Court ("the trial court") adjudicating Michael Wayne 

Duncan ("the father") as the legal father of E.D. ("the child"), born in May 

2016, and awarding the parties joint legal custody of the child, the mother 
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sole physical custody of the child, and the father visitation with the child.

We reverse the denial of the mother's postjudgment motion by operation 

of law and remand the cause for the trial court to conduct a hearing on 

that motion.

On November 25, 2019, the mother filed in the trial court a petition 

for a determination of paternity and custody of the child. The mother 

asked the trial court to adjudicate the father to be the legal father of the 

child, to award her legal and physical custody of the child, and to order 

the father to pay child support. On December 14, 2019, the father filed 

an answer in which he acknowledged that he was the child's father and 

a counterclaim asking the trial court to award him joint legal custody of 

the child with reasonable visitation. After considering the evidence 

presented at a trial conducted on July 26, 2021, the trial court, on October 

18, 2021, entered a final judgment adjudicating the father to be the legal 

father of the child and awarding the parties joint legal custody of the 

child, the mother sole physical custody of the child, the father visitation, 

and the mother $766 per month as child support and $10,000 as past-due 

child support. Regarding the father's visitation, the judgment provides:

"a. The father shall have visitation with the minor child 

on the 1st and 3rd weekends of each month beginning 
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November 6, 2021, from 6:00 p.m. on Friday until 6:00 p.m. 

on Sunday. Should Dr. Kale Kirkland decide that supervised 

visitation is needed, Dr. Kirkland shall have the authority to 

change the father's visitation to supervised visitation, and Dr. 

Kirkland shall be designated as the coordinator. Likewise, 

Dr. Kirkland also has the authority to change the visitation 

schedule. Dr. Kirkland and/or the parties may mutually 

agree upon the visitation supervisor should one be required. 

The father is responsible for coordinating said visitation with 

Dr. Kirkland. The mother shall contact Dr. Kirkland to 

confirm the time of said visits. The parties shall be 

responsible for payment of any supervised visitations on a 

pro-rata basis in accordance with child support guidelines."

(Emphasis added.)

On November 16, 2021, the mother filed a postjudgment motion, 

alleging, among other things, that the award of joint legal custody was

not in the child's best interest, that unsupervised visitation by the father 

with the child was not in the child's best interest, that the trial court 

exceeded its discretion by authorizing Dr. Kirkland to modify the father's 

type of visitation and visitation schedule, and that the trial court erred

in determining the amount of past-due child support. The mother asked 

the trial court to conduct a hearing to address the issues raised in her 

postjudgment motion. While the postjudgment motion was pending, the 

trial judge, after consideration of a motion to recuse filed by the father, 

recused herself. No hearing was conducted on the mother's postjudgment 
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motion, and the motion was denied by operation of law on February 14, 

2022. See Rule 59.1, Ala. R. Civ. P. On March 24, 2022, the mother filed 

her notice of appeal. 

The mother contends on appeal that the trial court erred by

allowing her postjudgment motion to be denied by operation of law 

without conducting a hearing. 

In Isbell v. Rogers Auto Sales, 72 So. 3d 1258, 1260-61 (Ala. Civ. 

App. 2011), this court stated:

"Rule 59(g), Ala. R. Civ. P., provides:

"'Presentation of any post-trial motion to a judge 

is not required in order to perfect its making, nor 

is it required that an order continuing any such 

motions to a date certain be entered. All such 

motions remain pending until ruled upon by the 

court (subject to the provisions of Rule 59.1), but 

shall not be ruled upon until the parties have had 

opportunity to be heard thereon.'

"(Emphasis added.) Describing the effect of the emphasized 

part of that rule, our supreme court has held that when a party 

requests a hearing on its postjudgment motion, 'the court must 

grant the request.' Flagstar Enters., Inc. v. Foster, 779 So. 2d 

1220, 1221 (Ala. 2000). However, although a trial court errs 

when it fails to hold a requested hearing on a Rule 59 

postjudgment motion, the supreme court has explained that 

such error does not always require reversal:

"'Harmless error occurs, within the context of a 

Rule 59(g) motion, where there is either no 
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probable merit in the grounds asserted in the 

motion, or where the appellate court resolves the 

issues presented therein, as a matter of law, 

adversely to the movant, by application of the 

same objective standard of review as that applied 

in the trial court.'

"Greene v. Thompson, 554 So. 2d 376, 381 (Ala. 1989)."

See also Rogers v. Rogers, 260 So. 3d 840, 844-45 (Ala. Civ. App. 2018).

The mother in her postjudgment motion requested a hearing to 

address the issues that she raised in her motion, and this court agrees 

with the mother that the trial court erred in refusing to conduct such a 

hearing. See Rule 59(g), Ala. R. Civ. P. Thus, the issue now becomes 

whether the failure to conduct a hearing was harmless. 

In her postjudgment motion and on appeal, the mother contends 

that the trial court exceeded its discretion by authorizing Dr. Kirkland 

"to change the father's visitation to supervised visitation ... and to change

the visitation schedule." According to the mother, this delegation of 

authority is erroneous and is not harmless error. The father in his 

appellate brief agrees with the mother that the provision delegating the 

trial court's authority to Dr. Kirkland to decide whether the father's 

visitation should be supervised is improper. 
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In Pratt v. Pratt, 56 So. 3d 638, 644 (Ala. Civ. App. 2010), this court 

stated:

" '"The trial court is entrusted to balance the rights of the 

parents with the child's best interests to fashion a visitation 

award that is tailored to the specific facts and circumstances 

of the individual case."' Ratliff [v. Ratliff], 5 So. 3d [570,] 586

[(Ala. Civ. App. 2008)] (quoting Nauditt v. Haddock, 882 So. 

2d [364,] 367 [(Ala. Civ. App. 2003)(plurality opinion)]) 

(emphasis added). That judicial function may not be 

delegated to a third party. See, e.g., M.R.J. v. D.R.B., 34 So. 

3d 1287 (Ala. Civ. App. 2009)(reversing as an improper 

delegation of judicial authority a trial court's visitation 

judgment in which the mother's visitation was at the sole 

discretion of the child's guardian ad litem). A trial court is not 

empowered to delegate its judicial functions even to another 

governmental agency. Hall v. Hall, 717 So. 2d 416 (Ala. Civ.

App. 1998)(a trial court cannot delegate the decision whether 

to terminate father's supervised visitation to those who would 

decide whether father would be prosecuted for sexual abuse). 

See also Sloand v. Sloand, 30 A.D. 3d 784, 816 N.Y.S. 2d 603 

(N.Y. App. Div. 2006)(affirming that portion of the trial court's 

order awarding supervised visitation to mother, but reversing 

as an improper delegation of judicial authority that portion of 

the order delegating to the child's therapist the authority to 

expand or reduce mother's access to child)."

Although the trial court's visitation award, as written, vests the 

father with unsupervised visitation, it provides Dr. Kirkland, a third 

party, with complete discretion to determine whether an award of 

unsupervised visitation is appropriate and the authority to modify the

type of visitation awarded and the visitation schedule. Because those are 
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nondelegable determinations for the trial court to make, the mother's 

postjudgment motion contains merit, and the denial of the mother's 

postjudgment motion without a hearing cannot be considered harmless. 

For the foregoing reasons, we reverse the denial of the mother's 

postjudgment motion by operation of law, and we remand the cause to 

the trial court to conduct a hearing on the issues raised in her 

postjudgment motion. Frazier v. Curry, 119 So. 3d 1195 (Ala. Civ. App. 

2013); and Isbell, supra. Although the mother raised other arguments in 

her postjudgment motion, the lack of a hearing on the propriety of the 

visitation award is dispositive, and we express no opinion as to the 

validity of the other arguments raised by the mother and pretermit 

discussion of them. See Henderson v. Henderson, 123 So. 3d 974, 977-78 

(Ala. Civ. App. 2013).

The mother's request for an attorney fee on appeal is denied.

REVERSED AND REMANDED.

Moore, Edwards, and Fridy, JJ., concur.

Hanson, J., recuses himself.