D.C.S. v. L.B.

• Decision Date: 18 November 2011
• Docket Number: 2091185.
• Citation: 84 So.3d 954
• Parties: D.C.S. v. L.B.
• Court: Alabama Court of Civil Appeals

84 So.3d 954

D.C.S.

v.L.B.

2091185.

Court of Civil Appeals of Alabama.

Nov. 18, 2011.

Robert S. Presto, Huntsville, for appellant.

Submitted on appellant's brief only.

On Rehearing Ex Mero Motu

THOMPSON, Presiding Judge.

This court's opinion of June 24, 2011, is withdrawn, and the following substituted therefor.

This is the second time D.C.S. ("the father") and L.B. ("the mother") have been before this court. In D.C.S. v. L.B., 4 So.3d 513 (Ala.Civ.App.2008), the mother sought a determination of the father's paternity, custody of the child, and an award of child support. The parties stipulated to the father's paternity of the child, and the juvenile court entered a pendente lite order that, among other things, established the father's paternity. In its April 13, 2007, final judgment, the juvenile court, among other things, awarded the mother custody of the child, determined that the father was voluntarily underemployed and calculated child support based on that determination, and awarded the mother a child-support arrearage. The father appealed, and this court affirmed; in pertinent part, this court agreed that the juvenile court had not erred in imputing income to the father for the purpose of calculating child support. D.C.S. v. L.B., supra.

On June 25, 2009, the father filed in the juvenile court a petition to modify his child-support obligation. In that petition, the father also asserted a claim seeking to have the mother held in contempt for various alleged violations of the "Standard Parenting Clauses" set forth in the April 13, 2007, judgment. With regard to both claims, the father sought an award of an attorney fee and costs from the mother.

The mother answered and denied the material allegations of the father's petition, and she then filed a counterclaim alleging that the father was in contempt for his failure to pay child support.

After receiving ore tenus evidence, the juvenile court entered a judgment in which it, among other things, denied the father's claim seeking a modification of child support. In reaching that ruling, the juvenile court again found the father to be voluntarily underemployed. The juvenile court awarded the mother a child-support arrearage. It also denied the father's contempt claims and his claims seeking an award of an attorney fee and costs. The father filed a postjudgment motion, which the juvenile court denied. The father timely appealed to this court.

In his brief on appeal, the father argues that the juvenile court erred in refusing to modify his child-support obligation. He also asserts arguments that the juvenile court erred in failing to find the mother in contempt and in failing to award him an attorney fee and costs.

On original submission, on June 24, 2011, this court issued a plurality opinion, in which Judge Moore concurred and Judge Bryan concurred specially, concluding that the juvenile court lacked continuing jurisdiction to consider the father's modification claims and that, based on that lack of continuing jurisdiction, the juvenile court also lacked jurisdiction over the enforcement claims. Judge Thomas wrote to concur in the result. The author of this opinion concurred with that part of the main opinion determining that the juvenile court lacked continuing jurisdiction over the modification claims but dissented from that part of the main opinion concluding that the juvenile court lacked the authority to consider the parties' contempt claims; Judge Pittman joined that writing. Thus, a majority of the court in the opinion released on original submission, in accordance with earlier precedent, held that the juvenile court lacked jurisdiction to consider the father's modification claims. However, the court was split with regard to the issue whether the juvenile court had jurisdiction over the enforcement claims, and no majority opinion resulted with regard to that issue. With regard to the issue whether the juvenile court retained jurisdiction over the contempt claims, this court's opinion was a plurality opinion.

"A plurality opinion is an opinion ‘agreed to by less than the majority as to the reasoning of the decision, but is agreed to by a majority as to the result,’ Black's Law Dictionary 1092 (6th ed.1990); an opinion that lacks the sufficient number of judges' votes to constitute a majority opinion. Therefore, ‘[t]he precedential value of the reasoning in a plurality opinion is questionable at best.’ Ex parte Discount Foods, Inc., 789 So.2d 842, 845 (Ala.2001) ; see also Ex parte Achenbach, 783 So.2d 4 (Ala.2000)."

Ex parte State (In re L.B.S. v. L.M.S.), 826 So.2d 178, 185 n. 4 (Ala.Civ.App.2002).

The Administrative Office of Courts, relying on and quoting solely from that part of the plurality opinion in which only two members of the court concurred, sent a letter to the trial courts of this state stating that this court had held that a juvenile court lacked continuing jurisdiction to enforce its own judgments. The Presiding Judge of the 13th Judicial Circuit, the State's Attorney General, the State Department of Human Resources, and the Administrative Office of Courts filed a joint motion as amici curiae asking this court to place the matter on rehearing, ex mero motu, to consider the purported impact their interpretation of the original opinion might have on the operation of the courts and the State's ability to qualify for certain federal funding. This court placed the appeal on rehearing, ex mero motu, and received oral arguments. This opinion replaces the opinion issued on original submission.

On original submission, neither of the parties to this appeal addressed the issue of the jurisdiction of the juvenile court or this court to consider his or her claims.¹ However, jurisdictional issues are of such importance that this court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997). " ‘[T]his Court is duty bound to notice ex mero motu the absence of subject-matter jurisdiction.’ " Baldwin Cnty. v. Bay Minette, 854 So.2d 42, 45 (Ala.2003) (quoting Stamps v. Jefferson Cnty. Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994) ). " ‘The question of jurisdiction is always fundamental, and if there is an absence of jurisdiction, over either the person, or the subject matter, a court has no power to act, and jurisdiction over the subject matter cannot be created by waiver or consent.’ " Poff v. General Motors Corp., 705 So.2d 442, 443 (Ala.Civ.App.1997) (quoting B.F. Goodrich Co. v. Parker, 282 Ala. 151, 155, 209 So.2d 647, 650 (1967) ).

Under former § 12–15–32, Ala.Code 1975, once a juvenile court properly exercised jurisdiction over a matter involving a child, the juvenile court maintained continuing jurisdiction over the child. However, our legislature altered the continuing jurisdiction of the juvenile courts when it enacted the new Alabama Juvenile Justice Act ("the current AJJA"), § 12–15–101 et seq., Ala.Code 1975, which became effective on January 1, 2009. See Act. No. 2008–277, Ala. Acts 2008. Section 12–15–117 of the current AJJA, which revised and renumbered former § 12–15–32, provides that a juvenile court retains continuing jurisdiction only when a child has been determined to be dependent, delinquent, or in need of supervision. Under the current AJJA, a juvenile court does not retain jurisdiction over custody disputes between parents that arise pursuant to claims seeking a modification of a judgment establishing a child's paternity. This court has explained:

"To the extent that a juvenile court has properly made an initial custody award, or has properly modified a custody judgment under the statutory framework set forth in the main opinion in W.B.G.M. [v. P.S.T., 999 So.2d 971 (Ala.Civ.App.2008) ], those judgments remain valid and enforceable notwithstanding the enactment of [the current AJJA]. Any such judgments would, however, be prospectively modifiable in Alabama only by the circuit courts, which are constitutionally constituted as ‘trial court[s] of general jurisdiction.’ Ala. Const.1901, § 139(a) (Off.Recomp.)."

Ex parte T.C., 63 So.3d 627, 631 (Ala.Civ.App.2010) ; see also Ex parte L.N.K., 64 So.3d 656, 658 (Ala.Civ.App.2010) ("Thus, this court has held that a juvenile court no longer has continuing jurisdiction over a child based solely on its having made a prior paternity determination."); K.C. v. R.L.P., 67 So.3d 94, 96 (Ala.Civ.App.2011) ("Because the child has never been found dependent, and because the present [modification] action was filed after January 1, 2009, it could only have been properly filed in the circuit court."); R.T. v. B.N.H., 66 So.3d 807 (Ala.Civ.App.2011) (the juvenile court lacked jurisdiction over an action involving claims to modify visitation and for grandparent visitation).

In this case, the juvenile court, in the 2007 action, determined the father's paternity, established custody, and fashioned a child-support award. The record contains no indication that the juvenile court found the child to be "dependent, delinquent, or in need of supervision" so as to continue the jurisdiction of the juvenile court under the current AJJA. § 12–15–117(a). In accordance with § 12–15–117(a) and recent caselaw, we must hold that the juvenile court was without jurisdiction to consider the father's claims seeking to modify the child-support provision of its earlier judgment; the modification claims were required to have been brought in the circuit court. See Ex parte T.C., supra; Ex parte L.N.K., supra. Therefore, the juvenile court's judgment as to these claims was void. See L.P. v. A.W., 78 So.3d 1003, 1006 (Ala.Civ.App.2011). Because a void judgment will not support an appeal, we dismiss the father's appeal in part, with instructions to the juvenile court to dismiss the father's petition insofar as it relates to his modification claims. See Searle v. Vinson, 42 So.3d 767, 772 (Ala.Civ.App.2010).

We conclude, however, that the juvenile court retained jurisdiction over the...