Fraiser v. Nahrstedt, [Ms. CL-2024-0220, Mar. 7, 2025] __ So. 3d __ (Ala. Civ. App. 2025). The court (Edwards, J.; Moore, P.J., and Hanson and Fridy, JJ., concur; Lewis, J., recuses) affirms in part and reverses in part the Elmore Circuit Court’s judgment in a custody/paternity matter.
The court holds the father’s motion to recuse the trial judge was untimely, as it was filed one year after the judge’s appointment and inadequately justified, thereby waiving the issue. Ms. *30. The court reiterates that “‘[a]n 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.’” Ms. *29, quoting 46 Am. Jur. 2d Judges § 208. The court also found no basis for disqualifying the mother’s counsel under Rule 1.9(a), Ala. R. Prof. Cond. The court concludes the mother’s attorney’s prior limited representation of the father in an unrelated civil matter did not constitute a substantially related conflict. Ms. **33-34.
The court refuses to consider the father’s unsupported argument challenging the guardian ad litem’s appointment. The court reiterates that an appellant’s failure to cite relevant legal authority results in waiver under Rule 28(a)(10), Ala. R. App. P. Dykes v. Lane Trucking, Inc., 652 So. 2d 248 (Ala. 1994). Ms. *36.
The court also rejects the father’s argument that the trial court lacked authority “to unilaterally amend its visitation award when no new evidence was presented following the final trial.” Ms. *40. The court explains “[m]otions 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,” ibid., and reiterates
“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, 347 (7th Cir. 1986); Arnold v. Sullivan, 131 F.R.D. 129, 133 (N.D. Ind. 1990).”
Ms. **40-41, quoting Henderson v. Koveleski, 717 So. 2d 803, 806 (Ala. Civ. App. 1998).
Finally, the court rejects the father’s contention “that the trial court’s amendments to its judgment were not supported by ‘new evidence … presented following the final trial.’ 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, 858 (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’).” Ms. *41, some internal quotation marks omitted.