JWJ, JR. v. PKR
Decision Date | 14 January 2005 |
Citation | 906 So.2d 182 |
Parties | J.W.J., Jr. v. P.K.R. and P.H.R. |
Court | Alabama Court of Civil Appeals |
Linda F. Coats, Huntsville, for appellant.
Maureen K. Cooper of Morris, Conchin, Cooper & King, Huntsville, for appellees. On Application for Rehearing
The opinion of this court on rehearing ex mero motu issued on August 20, 2004, dismissing the appeal is withdrawn, and the following opinion is substituted therefor.
This is a grandparent-visitation case. J.W.J., Jr., is the father of P.F.R. ("the child"), a four-year-old girl. P.K.R. and P.H.R. are the child's maternal grandparents. P.E.R., the child's mother, died in December 2002, when the child was two and one-half years old.
The child's parents were never married. In January 2001, when the child was six months old, J.W.J., Jr., filed a paternity complaint in the Madison Juvenile Court, seeking to have himself named the father of the child.1 On January 26, 2001, the juvenile court entered a judgment, pursuant to a settlement agreement between P.E.R. and J.W.J., Jr., determining that J.W.J., Jr., was the father of the child, awarding custody of the child to the mother, granting visitation rights to the father, and ordering the father to pay child support pursuant to Rule 32, Ala. R. Jud. Admin. The child was not a party to the paternity action.
During the mother's pregnancy and after the child's birth, the mother and the child lived in the maternal grandparents' home. The maternal grandparents cared for the child while the mother attended college and worked part-time. After the mother's death, the father assumed custody of the child and brought the child to live with him in the home of his parents (the child's paternal grandparents).
The juvenile court also granted the maternal grandparents one week of visitation during the Christmas season, daytime visitation on Mother's Day, and two weeks of visitation in the summer, beginning on the Monday immediately following Father's Day. The judgment further provided:
In an opinion issued on July 16, 2004, this court discussed the merits of the juvenile court's judgment awarding visitation to the maternal grandparents; we ultimately reversed the judgment of the juvenile court and remanded the cause with instructions. On August 20, 2004, however, this court placed the case on rehearing ex mero motu, withdrew the opinion of July 16, 2004, determined that the juvenile court did not have jurisdiction to entertain the petition for grandparent visitation, and dismissed the appeal. The maternal grandparents have now applied for a rehearing, urging us to reconsider our holding that the juvenile court lacked jurisdiction to entertain their petition for grandparent visitation.
Our August 20, 2004, opinion relied on Ex parte K.L.P., 868 So.2d 454 (Ala.Civ. App.2003), in which this court granted a parent's petition for the writ of mandamus, holding that the juvenile court did not have subject-matter jurisdiction to entertain an original petition for grandparent visitation pursuant to § 30-3-4.1, Ala.Code 1975. In K.L.P., the court explained:
868 So.2d at 456-57 (emphasis added).
The maternal grandparents argue that, notwithstanding the general rule that jurisdiction over grandparent-visitation cases is vested in the circuit court, the juvenile court had jurisdiction over their petition in the present case, they insist, because, two years before they filed their petition, the juvenile court had adjudicated the child's paternity, awarded custody to the mother and visitation to the father, and ordered the father to pay child support. Thus, the maternal grandparents maintain, the child was "otherwise before the [juvenile] court" within the meaning of § 12-15-30(b)(1), Ala.Code 1975. That section provides, in pertinent part:
Section 12-15-31(2), Ala.Code 1975, provides that the juvenile court shall have exclusive original jurisdiction "[i]n proceedings to establish paternity of a child born out of wedlock." The juvenile court first exercised jurisdiction over J.W.J., Jr., and P.E.R., the parents of the child, in a 2001 paternity action brought by the father. Issues of custody, visitation, and child support were adjudicated in the paternity action. The child, however, was not a party to the paternity proceeding.
"Section 26-17-11, Ala.Code 1975, allows, but does not require, the child to be made a party to a paternity action. See Thomas v. Callen, 521 So.2d 1322 (Ala.Civ.App.1987)
. In Ex parte Martin, 565 So.2d 1 (Ala.1989), our supreme court held that when a child is not made a party and represented in the litigation, he is not bound by the judgment. See also Ex parte L.F.B., 599 So.2d 1179 (Ala.1992).
S.C.G. v. J.G.Y., 794 So.2d 399, 404 (Ala. Civ.App.2000).
Section 12-15-32(a), Ala.Code 1975, provides, in pertinent part:
"(a) For the purposes of this chapter, jurisdiction obtained by the juvenile court in any case of a child shall be retained by it until the child becomes 21 years of age unless terminated prior thereto by order of the judge of the juvenile court."
(Emphasis added.) "Once the juvenile court obtains jurisdiction in the case of a child, it retains jurisdiction, with certain exceptions not relevant here, until the child is 21 years old or until its jurisdiction is terminated by order of the juvenile court. § 12-15-32(a), Ala.Code 1975; see also, Valero v. State, 511 So.2d 200, 203 (Ala.Civ.App.1987)
." Thompson v. Halliwell, 668 So.2d 43, 44 (Ala.Civ.App.1995).
When the child has not been made a party to a paternity proceeding, it is not accurate to say that the child is "otherwise before the [juvenile] court" within the meaning of 12-15-30(b)(1) simply because the juvenile court had previously decided a paternity action between the child's parents. Although in this case issues relating to the child were "otherwise before the [juvenile] court" at the time it entered its paternity judgment on January 26, 2001, the child herself was not "before the [juvenile] court" in the paternity action because she was not made a party to that action. We might conclude, based on this rather technical point, that the juvenile court never obtained jurisdiction over the child in the paternity proceeding and therefore that the court could not have retained continuing jurisdiction over the child so as to empower the court to adjudicate the grandparent-visitation petition. Howe...
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