K.M.D. v. T.N.B.

• Decision Date: 13 January 2017
• Docket Number: 2150829.
• Citation: 227 So.3d 512
• Parties: K.M.D. v. T.N.B.
• Court: Alabama Court of Civil Appeals

227 So.3d 512

K.M.D.

v.T.N.B.

2150829.

Court of Civil Appeals of Alabama.

January 13, 2017

K.M.D., Montgomery, for appellant.

Submitted on appellant's brief only.

MOORE, Judge.

K.M.D. ("the adoptive mother") appeals from an order entered by the Montgomery Juvenile Court ("the juvenile court") setting aside an award of attorney's fees in an adoption case. We reverse the juvenile court's order.

Procedural History

On January 22, 2015, the adoptive mother filed in the Montgomery Probate Court a petition to adopt T.B. ("the child"). On February 10, 2015, the probate court transferred the adoption proceeding to the juvenile court. See Ala. Code 1975, § 26–10A–21. T.N.B. ("the father") filed a contest to the adoption on April 30, 2015.

On April 8, 2016, the adoptive mother filed a "Motion for Award of Fees and Expenses," requesting that the juvenile court require the father to pay her "legal costs," pursuant to Ala. Code 1975, § 26–10A–24(i). On April 29, 2016, the adoptive mother personally served the father with the motion and notice that the juvenile court would hear the motion on May 13, 2016. On May 12, 2016, the adoptive mother filed a "Final Disclosure of Disbursements," designating the fees and expenses for which she sought reimbursement, including her attorney's fees.

On May 13, 2016, following a hearing at which the father did not appear, the juvenile court entered a judgment denying the father's adoption contest and approving the adoptive mother's "Final Disclosure of Disbursements." The juvenile court entered an order granting the adoptive mother's petition to adopt the child on May 16, 2016. (C. 339). That same day, the attorney for the adoptive mother sent a letter to the juvenile court arguing that the term "legal costs" in § 26–10A–24(i) included attorney's fees and requesting that the juvenile court order the father to pay the adoptive mother's attorney's fees. On May 17, 2016, the juvenile court entered an order granting the adoptive mother's "Motion for [Award of] Fees and Expenses." The next day, the juvenile court ordered the father to pay $23,450.00 in attorney's fees to the adoptive mother.

On June 28, 2016, the father filed a letter with the juvenile court requesting that the juvenile court "set aside" the order requiring him to pay the adoptive mother's attorney's fees due to his poverty. The juvenile court entered an order on June 29, 2016, setting aside the order requiring the father to pay the adoptive mother's attorney's fees. On June 30, 2016, the adoptive mother filed a motion requesting that the juvenile court vacate its June 29, 2016, order. On July 8, 2016, the juvenile court entered an order denying the adoptive mother's motion. In its July 8, 2016, order, the juvenile court stated that the father had not had notice or an opportunity to be heard with regard to the adoptive mother's request for attorney's fees, and, therefore, the juvenile court concluded, the award of attorney's fees was void. The juvenile court also found that "legal costs" under § 26–10A–24(i) did not include attorney's fees. The adoptive mother timely filed her notice of appeal to this court on July 8, 2016.

Discussion

Once an adoption case is transferred to the juvenile court, the Alabama Rules of Juvenile Procedure govern. See State Dep't of Human Res. v. Smith, 567 So.2d 333, 334 (Ala. Civ. App. 1990). Rule 1(B), Ala. R. Juv. P., provides, in pertinent part, that "[a]ll postjudgment motions ... must be filed within 14 days after entry of order or judgment." However, Rule 1(B) does not apply to motions filed under Rule 60(b), Ala. R. Civ. P., which are considered collateral attacks on a final judgment of a juvenile court. See M.E.W. v. J.W., 142 So.3d 1168, 1172 (Ala. Civ. App. 2013).

In this case, the juvenile court entered its final judgment awarding the adoptive mother attorney's fees on May 17, 2016. The father filed his letter, which the juvenile court treated as a motion to set aside the award of attorney's fees, on June 28, 2016, more than 14 days after entry of the final judgment. Thus, the juvenile court had no jurisdiction to consider that motion unless it could be characterized as a Rule 60(b) motion.

Rule 60(b) provides, in pertinent part:

"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)[, Ala. R. Civ. P.]; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment."

In his letter, the father requested that the juvenile court vacate the May 17, 2016, judgment because he could not afford to pay the attorney's fees. The letter did not set out any of the grounds for relief from the judgment established in Rule 60(b).

The juvenile court nevertheless purported to set aside the award of attorney's fees on the ground that the judgment was void. In its July 8, 2016, order, the juvenile court explained that it had vacated the award of attorney's fees on June 29, 2016, because it had found that the award had been entered without due process and because it had concluded that § 26–10A–24(i) did not authorize an award of attorney's fees. In taking that unusual action, the juvenile court, in essence, raised on its own motion the question of whether the award of attorney's fees was void and should be set aside under Rule 60(b)(4).

Generally speaking, " Rule 60(b) requires that a party move for relief from a judgment, and does not provide for sua sponte relief by the trial court." Ex parte P & H Constr. Co., 723 So.2d 45, 49 (Ala. 1998). However, Rule 60(b) does not displace the power of a trial court, as it existed under Alabama common law, to vacate a judgment on its own motion. See Ex parte Waldrop, 395 So.2d 62, 62 (Ala. 1981) (holding that, despite the adoption of Rule 60(b), a trial court or an appellate court can, on its own motion, vacate a judgment procured by fraud as it could under common law). Our supreme court held, before the advent of the Alabama Rules of Civil Procedure, that a trial court may, on its own motion, vacate a void judgment. See Taylor v. Jones, 202 Ala. 18, 19, 79 So. 356, 357 (1918) ("It is very true that if a judgment, on its face or on the face of its own record, is absolutely void, it is a nullity, and that, as it is calculated to mislead and deceive the public, the court, ex mero motu, or on motion of a stranger or amicus curiae, may purge the records of the court of such absolutely void and impertinent matters in former judgments, but in law and in fact nothing."). We have not located any supreme court case holding that the adoption of Rule 60(b)(4) has abrogated the holding in Taylor v. Jones.¹ Moreover, we note that other jurisdictions with a rule identical to our Rule 60(b)(4) have held that a court may sua sponte vacate a void judgment. See, e.g., McGee v. McGee, 168 Ohio App.3d 512, 515, 860 N.E.2d 1054, 1056 (2006) ; Carolina Paper Co. v. Bouchelle, 285 N.C. 56, 62, 203 S.E.2d 1, 5 (1974) ; and Banner v. Estate of Banner, 45 Mich.App. 148, 153, 206 N.W.2d 234, 237 (1973). Thus, we conclude that the juvenile court properly raised the issue of the voidness of the award of attorney's fees on its own motion.

The dissent maintains that our conclusion "is in direct conflict with a long line of prior decisions of this court and our supreme court." 227 So.3d at 518. However, neither Pierce v. American General Finance, Inc., 991 So.2d 212, 215 (Ala. 2008), nor Cornelius v. Green, 477 So.2d 1363, 1365 (Ala. 1985), the only supreme court cases cited by the dissent, 227 So.3d at 518–19, address the authority of a court, as it existed at common law, to vacate a judgment on its own motion. Likewise, most of the cases from this court cited in the dissent also do not address that particular procedural question.

The dissent does cite one case from this court in which the court at least impliedly held that a trial court could not vacate a judgment as void on its own motion. In Ex parte DiGeronimo, 195 So.3d 963, 969 (Ala. Civ. App. 2015), the trial court entered a divorce judgment on October 1, 2013. In April 2015, the trial court, on its own motion, vacated the divorce judgment on the ground that it was void because no grounds for divorce had been proven. On a petition for a writ of mandamus, this court determined that the writ of mandamus should issue because, we determined, a judgment is not void for the reason that had been given by the trial court. 195 So.3d at 968 (citing Nelson v. Moore, 607 So.2d 276, 277 (Ala. Civ. App. 1992) ). This court nevertheless proceeded to decide that the trial court had no authority to sua sponte vacate the divorce judgment as void. Arguably, that portion of the opinion is obiter dictum without any precedential effect. Ex parte Williams, 838 So.2d 1028, 1031 (Ala. 2002) ("[O]biter dictum is, by definition, not essential to the judgment of the court ...."). More to the point, in Ex parte DiGeronimo, 195 So.3d at 969, this court cited only Ex parte State Department of Human Resources, 47 So.3d 823, 830 (Ala. Civ. App. 2010), to support its holding, which does not address the authority of a trial court to vacate a judgment on its own motion. Even if Ex parte DiGeronimo does hold that a court cannot, on its own motion, vacate a void judgment, that decision is not controlling because it directly conflicts with the holding in Taylor v. Jones, supra, which, until...