
    Ex parte John Charles PIERCE. (In re Katherine H. Pierce v. John Charles Pierce).
    1030054.
    Supreme Court of Alabama.
    Dec. 30, 2003.
    Charles H. Dodson, Jr., and Joseph D. Steadman of Sims, Graddick & Dodson, P.C., Mobile, for petitioner.
    Kenneth A. Nixon and William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile; and Mary Dixon Torbert, Montgomery, for respondent.
   HARWOOD, Justice.

WRIT DENIED. NO OPINION.

HOUSTON, SEE, BROWN, WOODALL, and STUART, JJ„ concur.

LYONS and JOHNSTONE, JJ„ dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from the denial of the petition for the writ of certiorari in this case. The Court of Civil Appeals apparently has misapplied Rule 59, Ala. R. Civ. P., by holding that the trial court should have granted the mother’s Rule 59 motion and should have vacated the custody judgment on the basis of the mother’s post-judgment allegations of her postjudgment changes in her own living arrangements, not on the basis of the facts as they existed at the time of trial. Pierce v. Pierce, 884 So.2d 855 (Ala.Civ.App.2003).

A case must be decided on the basis of the facts as they exist at the time of the trial. While Rule 59 might be properly applied to accommodate newly discovered evidence of the facts as they existed at the time of trial, I respectfully submit that Rule 59 is not intended to accommodate new facts newly created by the moving party after trial. Moreover, even these newly created facts apparently were not established as such, as the trial court (according to the certiorari petition) did not reopen the evidence for the introduction of more evidence, and the Court of Civil Appeals has not instructed the trial court to reopen the evidence but instead has ordered the trial court to vacate its custody order apparently on no more basis than the mere allegations of the mother’s Rule 59 motion. Accordingly, I respectfully submit that we should grant this petition and examine the record.  