J.A.P. v. L.W.A.

• Decision Date: 08 April 2005
• Docket Number: 2030244.
• Citation: 910 So.2d 115
• Parties: J.A.P. v. L.W.A.
• Court: Alabama Supreme Court

910 So.2d 115

J.A.P. v. L.W.A.

2030244.

Court of Civil Appeals of Alabama.

August 13, 2004.

Certiorari Quashed April 8, 2005 Alabama Supreme Court 1031826.

COPYRIGHT MATERIAL OMITTED

J. Earl Smith, Dothan, for appellant.

Derek E. Yarbrough of Motley, Motley & Yarbrough, LLC, Dothan, for appellee.

On Application for Rehearing

THOMPSON, Judge.

The opinion of July 2, 2004, is withdrawn, and the following is substituted therefor:

This is the second time this matter has been before this court.

In J.A.P. v. M.M., 872 So.2d 861 (Ala.Civ.App.2003) (Murdock, J., concurring in the result), this court reviewed a February 4, 2003, judgment in which the Houston Circuit Court (hereinafter "the trial court") had declared the son (sometimes hereinafter referred to as "the child") of J.A.P. ("the mother") and L.W.A. ("the father") and the mother's 15-year-old daughter from a previous relationship dependent and had awarded custody of the children to M.M., the children's maternal grandmother. The underlying action in J.A.P. v. M.M., supra, had been initiated when the maternal grandmother filed an action in the Houston Juvenile Court (hereinafter "the juvenile court") seeking to have the mother's 15-year-old daughter declared dependent. At that time, a divorce action between the mother and the father was pending in the trial court, and that part of the divorce action pertaining to the custody of the mother and the father's son was transferred to the juvenile court. In the juvenile court, the mother, the father, and the maternal grandmother all sought custody of the son. On August 27, 2002, the juvenile court entered judgments awarding custody of the children to the maternal grandmother.

The mother filed a notice of appeal pursuant to § 12-15-120, Ala.Code 1975, for a trial de novo in the trial court with regard to only that part of the juvenile court's judgment concerning custody of the son. The father filed in the juvenile court a motion in which he acknowledged the award of custody to the maternal grandmother and sought an award of visitation with the son. The father did not appeal the juvenile court's judgment to the trial court.

In J.A.P. v. M.M., supra, this court held that the dispute between the mother and the maternal grandmother was in the nature of a custody dispute rather than a true dependency action. Therefore, this court reversed the trial court's judgment and remanded the cause for the trial court "to conduct further proceedings consistent with this opinion and to apply an appropriate custody standard." J.A.P. v. M.M., 872 So.2d at 867.

On August 19, 2003, less than two weeks after the August 8, 2003, release of this court's opinion in J.A.P. v. M.M., supra, the father filed in the trial court a petition, entitled "complaint," in which he sought custody of the son. The mother did not object to the father's assertion on remand of a claim for custody of the son. On October 30, 2003, the trial court conducted a hearing and received ore tenus evidence on the father's petition for custody of the son.

On November 7, 2003, the trial court entered a judgment in which it awarded custody of the son to the father. In that judgment, the trial court expressly found that the father had committed domestic violence upon the mother and that, pursuant to § 30-3-131 of the Custody and Domestic or Family Abuse Act, §§ 30-3-131 through -136, Ala.Code 1975, the father was presumed to be an unfit parent. The trial court further found that the father did not present sufficient evidence to override the presumption that the father, because of the acts of domestic abuse, should not be awarded custody of the son. See § 30-3-133, Ala.Code 1975 ("a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is in the best interest of the child to reside with the parent who is not a perpetrator of domestic or family violence"). In spite of those findings, the trial court determined that because the mother's past drug and alcohol use rendered her "borderline unfit" and because of the close relationship between the son and the mother's daughter, custody of the son should be with the father.¹ The mother filed a postjudgment motion, and the trial court denied that motion. The mother timely appealed.

Initially, we note that this case presents a unique procedural problem. We acknowledge that the mother has not raised in her brief on appeal the issue upon which we base our disposition of this matter. However, because of the history and procedural difficulties of this case, we conclude that we have no alternative but to reverse the trial court's judgment and remand the cause for the reasons discussed in this opinion.

We first address a threshold matter. It is clear that when the mother appealed the juvenile court's judgment concerning custody of the son to the trial court for a trial de novo, the father did not file in the trial court any pleading or motion seeking custody of the children. On application for rehearing, the father claims that he did seek custody of the child in the trial court after the mother filed her appeal seeking a trial de novo. However, in his brief on application for rehearing, the father directs this court only to a July 8, 2002, petition for custody he filed in the juvenile court. The father does not refer this court to any petition for custody he might have filed in the trial court after the mother appealed the juvenile court's August 27, 2002, judgment for a trial de novo.

Where an issue is not raised in a pleading but it is tried by the express or implied consent of the parties, the pleadings may be treated as amended so as to conform to the evidence. Rule 15(b), Ala. R. Civ. P. On application for rehearing, the father contends that the record demonstrates that his claim for custody of the child was tried by the implied consent of the parties during the February 3, 2003, trial de novo. The father directs this court to an exchange between the attorneys and the trial court that occurred before the commencement of the October 20, 2003, hearing conducted on remand. In that exchange, the father incorrectly asserted that, during the course of the litigation, he had always maintained petitions for custody of the child. Also during that exchange, the trial court twice stated that it recalled the custody dispute in the trial de novo as having been between the mother and the grandmother. We note that, in his brief on application for rehearing, the father does not address this court's discussion, set forth in footnote 3 of our original opinion and of this opinion, of his limited involvement in the February 3, 2003, trial de novo. Our review of the evidence, upon our initial review of this matter in J.A.P. v. M.M., supra, upon the original submission in this appeal,² and again upon application for rehearing indicates that this is not a case in which the issue of any purported claim by the father for custody of the child was tried by the implied consent of the parties during the trial de novo.³ Given the record on appeal, we cannot say that the evidence supports a finding that any purported claim for custody by the father was tried by the express or implied consent of the parties during the trial de novo.

Even assuming that the father's limited participation in the trial de novo somehow amounted to an assertion of a claim for custody, the trial court's February 4, 2003, judgment awarded custody to the maternal grandmother; thus, in that judgment, the trial court ruled against both the mother and the father. Only the mother appealed the trial court's February 4, 2003, custody judgment; the father did not appeal. See J.A.P. v. M.M., 872 So.2d at 863 at ("[the father] has not appealed from the trial court's custody judgment, and, therefore, he is not a party to this appeal. However, [the father] has filed an amicus curiae brief in this court in which he advocates the affirmance of the trial court's judgment awarding custody of the son to the maternal grandmother."). Our supreme court has held that where a judgment is adverse to two or more parties but only one party appeals, in general, if the appellate court reverses the judgment on appeal, the party that failed to appeal is bound by the original judgment as if no appeal had been taken. Glasscock v. Wallace, 488 So.2d 1346, 1347 (Ala.1986); Cox v. Carr, 271 Ala. 658, 660, 127 So.2d 622, 623-24 (1961). "We have said that when a decision in a case as to one appellee is not affected by the decision as to the other, a joint judgment may be reversed as to one appellee without disturbing the judgment as to the other." Hall v. Dexter Gas Co., 277 Ala. 360, 366, 170 So.2d 796, 801 (1965).

There are exceptions to the rule set forth in Glasscock v. Wallace, supra; Hall v. Dexter Gas Co., supra; and Cox v. Carr, supra. Those exceptions are implicated where the parties' interests are intertwined or interdependent, or where justice requires the reversal of the judgment in its entirety. See CP & B Enters., Inc. v. Mellert, 762 So.2d 356 (Ala.2000); Glasscock v. Wallace, supra; Sealy v. McElroy, 288 Ala. 93, 257 So.2d 340 (1972); Alabama Power Co. v. King, 280 Ala. 119, 190 So.2d 674 (1966); and Bush v. James T. Johnson & Co., 411 So.2d 139 (Ala.Civ.App.1982).

Our supreme court has determined that the facts of several cases have caused those cases to fall within the exception to the rule that where fewer than all parties aggrieved by a judgment appeal that judgment, the judgment is treated as in force as to the nonappealing parties. In Alabama Power Co. v. King, supra, the plaintiff sued Alabama Power and the drivers of two automobiles for damages after his home was destroyed by a fire. It appears that the two drivers hit a power pole, which contributed to causing an electrical fire that destroyed the plaintiff's home. Our supreme court reversed the trial court's judgment finding Alabama Power liable for damages...