Marler v. Lambrianakos

• Decision Date: 28 September 2018
• Docket Number: 2170483
• Citation: 281 So.3d 415
• Parties: Melissa K. MARLER v. Julie LAMBRIANAKOS
• Court: Alabama Court of Civil Appeals

281 So.3d 415

Melissa K. MARLER
v.
Julie LAMBRIANAKOS

2170483

Court of Civil Appeals of Alabama.

September 28, 2018
Certiorari Denied March 15, 2019

Alabama Supreme Court 1180316

William K. Bradford of Bradford Ladner, LLP, Birmingham; and William P. Burgess, Jr., of Maynard, Cooper & Gale, P.C., Huntsville, for appellant.

Mitchell J. Howie, Huntsville, for appellee.

THOMPSON, Presiding Judge.

On August 17, 2017, Julie Lambrianakos ("the paternal grandmother") filed in the Madison Circuit Court ("the trial court") a petition seeking to register a foreign judgment under Alabama's version of the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975. The paternal grandmother attached to that petition a July 31, 2017, judgment of the Family Court of Kings County, New York, that awarded her grandparent visitation with her grandchild, who was born of the marriage of Melissa K. Marler ("the mother") and John Michael Lambros ("the father"), who is the paternal grandmother's late son.

On August 28, 2017, the mother filed an answer and an emergency motion to stay the visitation award set forth in the New York judgment. In that pleading, the mother argued that, for several reasons, including a purported lack of jurisdiction and a purported failure to provide her adequate notice, the New York judgment was not enforceable in Alabama.

After conducting a hearing, the trial court entered a September 1, 2017, order granting the paternal grandmother pendente lite visitation with the child. The trial court entered a September 12, 2017, order "confirming" the New York judgment, but it vacated that order on that same date on the motion of the mother. On September 13, 2017, the paternal grandmother filed a renewed and amended petition to register the New York judgment, and she sought to have the mother held in contempt both for violating the provisions of the New York judgment and for failing to comply with the requirements of the trial court's September 1, 2017, pendente lite order. The mother opposed the amended petition to register the foreign judgment and disputed the claims seeking to have her held in contempt.

The trial court conducted an ore tenus hearing on December 4, 2017. Also on that date, it entered an order in which it, among other things, specified that the parties were allowed to submit posttrial briefs. The parties submitted letter briefs to the trial court, and the child's guardian

281 So.3d 418

ad litem submitted a report that included a recommendation to the trial court.

On February 15, 2018, the trial court entered an order in which it determined, among other things, that the mother had received the requisite notice from the New York court. The trial court confirmed the registration of the New York judgment. The mother filed a notice of appeal on February 16, 2018.

The trial court's February 15, 2018, order did not address the contempt claims the paternal grandmother had asserted against the mother.¹ This court reinvested the trial court with jurisdiction, and the trial court entered an August 4, 2018, order in which it certified its February 15, 2018, order as final pursuant to Rule 54(b), Ala. R. Civ. P.

In her appellate brief, the mother argues that this court should overrule G.P. v. A.A.K., 841 So.2d 1252 (Ala. Civ. App. 2002), "to the extent that it holds that an out-of-state judgment awarding grandparent visitation is a ‘child-custody determination’ as that term is defined in Alabama's UCCJEA"; the mother asks this court to hold that the UCCJEA does not govern this action. However, the mother did not argue before the trial court that the UCCJEA did not apply in this case. Rather, all of her arguments before the trial court pertained to her contention that, under the UCCJEA, the New York judgment was invalid and could not be properly registered or confirmed in Alabama.

"The function of an appeal is to obtain judicial review of the adverse rulings of a lower court; thus, it is a well-settled rule that an appellate court's review is limited to only those issues that were raised before the trial court. Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala. 1992) ; Crest Construction Corp. v. Shelby County Bd. of Education, 612 So.2d 425 (Ala. 1992). Issues raised for the first time on appeal cannot be considered. Andrews, supra ; Crest Construction, supra ; Owens v. National Bank of Commerce, 608 So.2d 390 (Ala. 1992)."

Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala. 1994). See also Shiver v. Butler Cty. Bd. of Educ., 797 So.2d 1086, 1088 (Ala. Civ. App. 2000) ("[A] reviewing court cannot consider arguments made for the first time on appeal."). The mother's failure to argue or raise this issue before the trial court precludes this court's review of the issue.

Section 30-3B-305, Ala. Code 1975, a part of the UCCJEA, governs the registration of a foreign custody judgment. The first few subsections of that statute–- § 30-3B-305(a), (b), and (c) --set forth the notice requirements for registering a foreign judgment. The mother argues that the trial court lacked subject-matter jurisdiction because, she says, the record does not demonstrate that the paternal grandmother properly complied with the requirements of § 30-3B-305(a) in seeking to register the New York judgment. The mother is asserting that argument for the first time on appeal; she did not dispute before the trial court the paternal grandmother's compliance with § 30-3B-305(a). In her brief filed in this court, the paternal grandmother maintains, in response to the mother's argument on this issue, that some pages of her initial petition filed in the trial

281 So.3d 419

court have been omitted from the record and that she successfully obtained an order from the trial court granting her motion to supplement the record on appeal to include those pages; the paternal grandmother characterizes the omission as a "scanning error" on the part of the trial-court clerk. The trial court granted the motion to supplement, and the omitted pages are contained in the record on appeal, as supplemented.

In her reply brief filed in this court, the mother concedes that the pages were omitted from the record due to a "scanning error." The mother states that "a review of the record prior to May 9, 2018 [ (i.e., the date on which the record on appeal was supplemented) ], would reasonably lead one to believe that the [paternal grandmother] had failed to comply with the requirements of Alabama Code § 30-3B-305(a)." The mother contends in her reply brief, in response to the paternal grandmother's request for an award of an attorney fee as a sanction for the mother's argument on this issue,² that, based on the record originally submitted to this court, her argument on this issue was not without merit and that, because the issue is jurisdictional, had the record not been supplemented, it would have supported her allegations and "the argument would have been properly presented." Thus, it appears that the mother is no longer asserting this argument on appeal.

The mother also advances several arguments asserting that the trial court erred in confirming the July 31, 2017, New York judgment. The UCCJEA sets forth the methods by which the registration of a foreign judgment may be contested by providing:

"(d) A person seeking to contest the validity of a registered order must request a hearing within 30 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:

"(1) The issuing court did not have jurisdiction under Article 2 [of the UCCJEA];

"(2) The child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Article 2; or

"(3) The person contesting registration was entitled to notice, but notice was not given in accordance with the standards of Section 30-3B-108, [Ala. Code 1975,] in the proceedings before the court that issued the order for which registration is sought."

§ 30-3B-305(d). The mother argues both that the New York court did not have jurisdiction under the UCCJEA, see § 30-3B-305(d)(1), and that she did not receive sufficient notice as required by § 30-3B-305(d)(3).

The evidence presented at the ore tenus hearing reveals the following facts. The mother testified that she, the child, and the child's father had lived in an apartment in New York City from 2008 until the father's death in 2013 and that she and the child continued to reside in that apartment for a short time thereafter. The paternal grandmother filed her grandparent-visitation action in New York on November 20, 2013, which, the mother stated, was approximately one week after the father's death.

281 So.3d 420

The mother admitted that on November 22, 2013, she received service of process of the New York action while she and the child were residing in the New York City apartment. The mother stated that, on the date that she was served, she was in the process of moving from that New York apartment to Alabama to live with her mother.

The mother responded to the New York action from Alabama, and she provided the New York court with her mother's address. The mother explained that she and...