M.B. v. R.P.
| Decision Date | 15 August 2008 |
| Docket Number | 2070280. |
| Citation | 3 So.3d 237 |
| Parties | M.B. v. R.P. and P.P. et al. |
| Court | Alabama Court of Civil Appeals |
R. Stan Morris of Cartee & Morris, L.L.C., Guntersville, for appellant M.B.
Jonathan W. Cartee of Cartee & Morris, L.L.C., Guntersville, for intervenors W.B., and Ma.B.
Phillip W. Williams, Jr., and Russel A. McGill of Brunson & Associates, P.A., Gadsden, for appellees R.P. and P.P.
M.B. ("the father") appeals a December 13, 2007, judgment that determined that his child, B.P., was dependent and awarded joint legal custody of the child to the child's maternal grandparents, R.P. and P.P., and the child's paternal grandparents, W.B. and Ma.B. The December 13, 2007, judgment specified that the maternal grandparents were to receive primary physical custody, awarded the paternal grandparents a standard schedule of visitation, and awarded the father "reasonable visitation" during the time the child was visiting the paternal grandparents.
The child was born on July 10, 2002. The father and the child's mother, Br.P ("the mother"), never married, but M.B. was listed as the child's father on his birth certificate. No formal action to establish the father's paternity was initiated. However, during the course of this matter, the parties stipulated to the father's paternity, and the juvenile court noted that stipulation on the record.
The mother was murdered on July 27, 2005; the mother died intestate and had made no arrangements concerning a guardian for the child. Approximately one month after the mother's death, the maternal grandparents filed a complaint seeking to be awarded emergency custody of the child and seeking to have the child declared dependent. In their complaint, the maternal grandparents alleged that the child's mother had been killed; that the father had had only minimal contact with the child and had never paid child support; that the father had assaulted the mother when she was pregnant with the child; that the father was a drug addict; and that the father had committed domestic violence against R.C., his girlfriend, who lived with the father and was the mother of another of the father's children. Based on the maternal grandparents' dependency complaint, the juvenile court, on September 2, 2005, awarded the maternal grandparents emergency custody of the child; the September 2, 2005, order did not contain a specific finding that the child was dependent.
The father filed a motion to set aside the September 2, 2005, order, and the juvenile court conducted a pendente lite hearing at which it received ore tenus evidence. After that hearing, on September 16, 2005, the juvenile court entered a "pendente lite" order in which it awarded joint custody of the child to the maternal grandparents and the father; pursuant to that joint-custody award, the maternal grandparents and the father alternated weeks of custody of the child. In the September 16, 2005, order, the juvenile court did not expressly find the child dependent; however, the juvenile court referenced the fact that the order was entered on the issues of dependency and custody.
In July 2006, the maternal grandparents moved to terminate the father's "visitation" with the child; in support of that motion, the maternal grandparents submitted the affidavit of R.C. In that affidavit, R.C. alleged that the father had committed acts of domestic violence against her in front of the child and her own child, that the father continued to smoke marijuana and drink alcohol, and that she had witnessed physical altercations between the father and the paternal grandfather. R.C. also alleged in her affidavit that she was five months pregnant with the father's child and that the father had left her for another woman. The juvenile court scheduled an ore tenus hearing on the maternal grandparents' motion; the transcript from that hearing is not contained in the record on appeal. After the hearing, the juvenile court, on August 7, 2006, entered an order in which it found that the child "remained dependent" and in which it temporarily suspended the father's exercise of joint custody until the father completed anger-management and "Level II CRO" classes.1 After the father had complied with the terms of the August 7, 2006, order, the juvenile court, on February 27, 2007, ordered that the father have supervised visitation with the child.
In March 2007, the paternal grandparents moved to intervene in the action. The paternal grandparents initially sought an award of grandparent visitation pursuant to § 30-3-4.1, Ala.Code 1975. The paternal grandparents later asked the juvenile court to award them custody of the child in the event the child was determined to be dependent or custody was not awarded to the father. The record does not contain an order granting the paternal grandparents' motion to intervene. However, a March 9, 2007, visitation order referred to the paternal grandparents as "intervenors," and the paternal grandparents were designated as parties in later orders and in the final judgment.2 Pursuant to the March 9, 2007, visitation order the paternal grandparents were awarded visitation with the child from 10:00 a.m. to 5:00 p.m. every Saturday, and the father was awarded visitation, subject to the paternal grandparents' supervision, from 1:00 p.m. to 5:00 p.m. on those Saturdays.
In July 2007, the father moved to dismiss the action, arguing that the juvenile court did not have subject-matter jurisdiction because it had failed to find the child dependent in its initial custody order. The juvenile court denied that motion.
The juvenile court conducted a two-day ore tenus dispositional hearing on October 23 and 25, 2007. See § 12-15-65, Ala. Code 1975. On December 13, 2007, the juvenile court entered its final judgment. Because we are remanding the cause to the juvenile court to reconsider the evidence presented to it during the October 2007 hearing, we do not set forth that evidence in this opinion.
While his appeal was pending in this court, the father asked for and received an extension of the date on which his appellate brief was due. See Rule 31, Ala. R.App. P. (). Including the time specified in that extension, the father's brief was due in this court on March 19, 2008. The father electronically filed his brief in this court on March 15, 2008. The father's appellate brief contained a certificate of service stating, "I hereby certify that the foregoing has been served upon all attorneys of record by mailing a true and exact copy of same by U.S. mail, postage prepaid, properly addressed, this the 15th day of March 2007[sic]." (Emphasis added.) The father's attorney signed the certificate of service. On March 17, 2008, this court received paper copies of the father's brief.
On March 20, 2008, this court, apparently on the motion of the maternal grandparents, granted the maternal grandparents an extension of the time in which to file their appellate brief. After the grant of that extension, the maternal grandparents' brief was due April 14, 2008.
On April 11, 2008, the maternal grandparents filed a motion to dismiss the father's appeal. The maternal grandparents electronically filed a brief on April 14, 2008, and this court received paper copies of that brief on April 16, 2008. On April 15, 2008, the child's guardian ad litem filed a motion to dismiss the father's appeal. The father opposed the motions to dismiss.
In their motions to dismiss, the maternal grandparents and the guardian ad litem (hereinafter collectively referred to as "the movants") assert that they did not receive copies of the appellant's brief as set forth in the appellant's certificate of service, and they argue that, on that basis, the father's appeal should be dismissed.3 In their motion the maternal grandparents cite Skelton v. City of Tuscaloosa, 46 Ala.App. 404, 243 So.2d 388 (Crim.1971), and Gorman v. Alexsis, 681 So.2d 655 (Ala.Civ.App.1995) (table), in support of their argument.
In response, the father submitted an argument, supported by the affidavit of his attorney and the affidavit of the attorney's secretary, asserting that the father's appellate brief was transmitted electronically to the maternal grandparents' attorney on March 20, 2008. The father's response explains that the father's attorney left for an international trip after electronically filing the father's appellate brief in this court on March 15, 2008, and that the attorney's secretary erroneously assumed that the briefs filed in this court would be automatically served upon all counsel of record. When someone from the maternal grandparents' attorney's law firm attempted to contact the father's attorney on March 20, 2008, the secretary for the father's attorney became aware of the mistake, and she e-mailed the father's appellate brief to counsel for the maternal grandparents. However, the secretary did not serve the maternal grandparents with a paper copy of the brief as specified in the certificate of service in the father's appellate brief.
On April 15, 2008, after he returned from his trip, the father's attorney served a paper copy of the father's brief on the movants. The father's attorney argues that it would be inequitable to dismiss this appeal based on the failure to timely serve the appellate brief on the movants. The father has moved this court, as an alternative to his opposition to the motions to dismiss, to exercise our discretion and suspend the requirements of Rule 31, Ala. R.App. P. See Rule 2(b).
In Skelton v. City of Tuscaloosa, supra, the appellants served a copy of their appellate brief on the state's attorney general rather than on the city attorney for the appellee. Citing former Supreme Court Practice Rule 11,4 the Court of Criminal Appeals held that the "appellants' failure to serve [the] appellee with a...
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