Ex parte RSC
| Decision Date | 18 October 2002 |
| Parties | Ex parte R.S.C. (In re State ex rel. A.S. v. R.S.C.) |
| Court | Alabama Court of Civil Appeals |
Calvin M. Howard, Birmingham, for petitioner.
William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for respondent.
J.W.C. ("the mother") and R.S.C. ("the father") were divorced by a judgment of the Jefferson Circuit Court in November 1983. Pursuant to a modification of the parties' divorce judgment on May 26, 1988, the mother was awarded custody of the parties' daughter, born in August 1980, and their son, born in December 1982. The father was ordered to pay $225 per month in child support. On February 10, 1999, the State, on behalf of A.S. ("the aunt"), filed a petition in the Calhoun County Juvenile Court for child support, because she had physical custody of the two children. The aunt requested that the father pay child support to her for the care and support of the two children. The father moved to dismiss, arguing that the aunt lacked standing because she was not the "legal and/or proper" custodian of the children. The father attached an affidavit to the motion; in that affidavit he stated that he had never given the mother permission to transfer legal custody of the children to the aunt but that he recognized that the children "went to visit with and stay with [the aunt] awhile back."
On July 13, 1999, at a hearing at which all parties were present, the parties agreed and the court ordered that all child-support payments be redirected to the Calhoun Circuit Court for receipt by the aunt. The court further ordered that any arrearage as of July 13, 1999, remained the property of the mother.
On January 4, 2000, the State, on behalf of the aunt, filed a notice of application for child-support services and a request for collection of child-support payments. The aunt requested that all payments be made to the State because she was receiving public assistance on behalf of the children. On January 10, 2000, the court ordered that all future child-support payments be paid to the State.
On January 22, 2002, the State, on behalf of the aunt, filed a petition seeking to have the father held in contempt, alleging that the father was $900 in arrears as of October 20, 2001, and that the accumulated interest on that amount was $36. On March 6, 2002, the father moved to dismiss the contempt petition on the grounds that the aunt lacked standing to file such a petition, that both children had reached the age of majority before the contempt petition had been filed, and that, because the children had reached the age of majority, contempt was not a proper form of relief. On April 11, 2002, the State, on behalf of the aunt, filed a response to the father's motion, arguing that the aunt had standing to bring the action pursuant to the July 13, 1999, order of the Calhoun Juvenile Court and that a petition for contempt was the proper procedural vehicle to be used to enforce the father's child-support obligations.
At a hearing held on April 16, 2002, the trial court entered an order, finding that the father owed $3,163.50 in child-support arrearage and interest. The court also found that the father's failure to pay was due to willful neglect and not to an inability to pay. The court ordered the father to pay $200 per month beginning on May 1, 2002, entered an income-withholding order against the father's employer, and issued an arrest warrant for the father for failure to appear at the April 16, 2002, hearing.
On May 10, 2002, the father filed a postjudgment motion entitled "Motion for Order Ex Mero Motu to forthwith Recall, Rescind, Revoke and Set Aside the Court's Income `Withholding Order.'" The motion sought relief from the entry of the income-withholding order on the basis of the holding in W.L.S. v. K.S.S.V., 810 So.2d 777 (Ala.Civ.App.2001), which provides that an income-withholding order may not be used to collect a child-support arrearage after a child has reached the age of majority. That same day, the father filed a "Motion to Alter, Amend, or Vacate Judgment," also seeking relief from the entry of the income-withholding order based on the holding in W.L.S. v. K.S.S.V., supra.
He also argued that the aunt lacked standing to bring the petition for contempt because, by the terms of the original divorce judgment, the mother was the children's legal custodian.
On June 3, 2002, the father petitioned this court for a writ of mandamus directing the circuit court to vacate its April 16, 2002, order. In his petition, the father argued that the aunt lacked standing to bring the petition for contempt and that, therefore, the April 16, 2002, order was void. He also argued that that court lacked the authority to enter the income-withholding order. On June 6, 2002, the trial court denied the father's postjudgment motions on the ground that the motions were untimely filed.
The State, on behalf of the aunt, argues that the father's petition for a writ of mandamus is untimely because he should have filed the petition within 14 days of the trial court's April 16, 2002, judgment. The father argues that the motions he filed on May 10, 2002, were, in essence, Rule 60(b)(4), Ala. R. Civ. P., motions for relief from judgment.1 He further argues that, pursuant to Rule 1(B), Ala. R. Juv. P., no postjudgment motion filed in juvenile court may remain pending more than 14 days. Therefore, he contends, his postjudgment motions were deemed denied on May 24, 2002, and his petition for a writ of mandamus was timely filed on June 3, 2002, less than 14 days after his postjudgment motions were deemed denied by operation of law.
We agree with the father that his motions filed on May 10, 2002, were seeking relief from a judgment, pursuant to Rule 60(b), Ala. R. Civ. P. The father argued in his motions that the trial court's judgment was void because the aunt lacked standing to bring the contempt petition as a "nonparent." Standing is related to subject-matter jurisdiction, lack of which is grounds for relief under Rule 60(b)(4). He also sought relief on the ground that the trial court lacked the authority to enter an income-withholding order based on the holding in W.L.S. v. K.S.S.V. However, we disagree with the father's argument that his Rule 60(b)(4) motions were deemed denied by operation of law, pursuant to Rule 1(B), Ala. R. Juv. P.
Rule 59.1, Ala. R. Civ. P., provides that "[n]o post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days." In district court, "Rule 59.1 applies in the district courts except that the time period of ninety (90) days is reduced to fourteen (14) days." Rule 59.1(dc). Rule 1(A), Ala. R. Juv. P., provides that the Rules of Civil Procedure are applicable in juvenile court to the extent they are not inconsistent with the Rules of Juvenile Procedure. Rule 1(B), Ala. R. Juv. P., provides that no postjudgment motion shall remain pending for more than 14 days.
It is well settled that the 90-day period for pending postjudgment motions applies only to motions filed under Rules 50, 52, 55, and 59, and that it does not apply to Rule 60(b) motions to set aside a judgment. Conway v. Housing Auth. of Birmingham Dist., 676 So.2d 344 (Ala.Civ.App.1996). A Rule 60(b) motion does not bring up for review the merits of the underlying judgment and is instead a collateral attack on the judgment. It does not affect the finality of a judgment or suspend its operation. While a postjudgment motion filed pursuant to Rule 50, 52, 55, or 59 cannot remain pending in the juvenile courts for more than 14 days, J.S. v. S.W., 702 So.2d 169 (Ala.Civ.App.1997), a Rule 60(b) motion for relief from judgment is not deemed denied by operation of law under Rule 1(B), Ala. R. Juv. P. Therefore, the father's petition for a writ of mandamus seeking to set aside a purported denial of a Rule 60(b) motion by operation of law was premature because the trial court had not yet ruled on the motions.2
Rule 21(a), Ala. R.App. P., provides that "[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court shall be the same as the time for taking an appeal." The Committee Comments to Amendments to Rule 21(a) and 21(e)(4) provide:
"[W]here the petition for the writ of mandamus challenges an action of the trial court, the amended rule adopts as the presumptively reasonable time the 42-day period for appealing from a final judgment in a civil case, unless the time for appeal is shorter, pursuant to a rule or a statute (see, e.g., Rule 4(a)(1)), in which case the shorter time becomes the presumptively reasonable time."
Rule 4(a)(1)(E), Ala. R.App. P., provides that an appeal from the final order or judgment issued by a juvenile court shall be filed within 14 days of the date of the order that is appealed. The father's petition for a writ of mandamus, filed on June 3, 2002, was premature because the trial court did not deny his Rule 60(b) motions until June 6, 2002. Even if the father had timely filed his petition after the trial court denied the motions on June 6, 2002, he would not be entitled to a writ of mandamus because he had an adequate remedy through a direct appeal.
Ex parte J.E.W., 608 So.2d 728, 729 (Ala.1992).
In Ex parte Spears, 621 So.2d 1255, 1256-57 (Ala.1993), our supreme court...
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