Jbf v. Jmf

730 So. 2d 1197 (1998)

J.B.F. v. J.M.F.

2960263.

Court of Civil Appeals of Alabama.

November 13, 1998.

David Gespass and Kathleen M. Johnson of Gespass & Johnson, Birmingham, for appellant.

Robert L. Austin, Birmingham, for appellee.

WRIGHT, Retired Appellate Judge.

This case is before this court on remand from our supreme court. Ex parte J.M.F., 730 So. 2d 1190 (Ala.1998). The supreme court directed this court to affirm the trial court's judgment regarding the custody change and to consider the restriction placed on the mother's visitation rights. Id. The trial court ordered that the mother could not exercise her visitation rights with the daughter in the presence of the mother's companion. Our original judgment reversed the judgment of the trial court without addressing that issue.

As we consider the opinion of the supreme court, it effectively prevents the child from being in the presence of the mother's companion under any circumstances. Therefore, in view of our interpretation of the opinion of the supreme court on the primary issue, we consider that it also determines the answer to the issue of whether the child may be alone in the presence of the mother and her companion. Although we disagree with the judgment of the supreme court on the primary issue of custody, we are bound by that judgment. § 12-3-16, Ala.Code 1975. Accordingly, in compliance with the supreme court's opinion of June 19, 1998, 730 So. 2d 1190, we must affirm the judgment of the trial court, which changed custody of the child from the mother to the father and restricted the mother's visitation with her daughter to a time when they are not in the presence of the mother's companion.

The judgment of the trial court is affirmed in its entirety.

The foregoing opinion was prepared by Retired Appellate Judge L. Charles Wright while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

AFFIRMED.

ROBERTSON, P.J., and YATES and MONROE, JJ., concur.

CRAWLEY, J., concurs in the result, with opinion.

THOMPSON, J., concurs in the result, without opinion.

CRAWLEY, Judge, concurring in the result.

I concur in the result. I decline to join in the statement "[W]e disagree with the judgment of the supreme court on the primary issue of custody...." Whether this court agrees with the judgment of the supreme court is irrelevant, in light of Ala.Code 1975, § 12-3-16.