Pendergrass v. Watkins

• Decision Date: 09 April 1980
• Parties: June Johnson PENDERGRASS and Jimmy S. Johnson v. W. C. WATKINS and Nell Watkins. Civ. 2001.
• Court: Alabama Court of Civil Appeals

Page 851

383 So.2d 851

June Johnson PENDERGRASS and Jimmy S. Johnson v. W. C. WATKINS and Nell Watkins.

Civ. 2001.

Court of Civil Appeals of Alabama.

April 9, 1980.

Rehearing Denied May 14, 1980.

George E. Trawick, Ariton, for appellants.

Thad Yancey, Jr., of Cervera & Yancey, Troy, for appellees.

WRIGHT, Presiding Judge.

This is a child custody case of unusual origin with material collateral aspects.

The parents of Rusty Johnson, a child of eight years, were divorced in Pike County Circuit Court, Judge Riley Green sitting, on May 8, 1975. Custody of Rusty, an only child, was, by agreement of the parents, given to June, the mother. Jimmy, the father, was by agreement ordered to pay $75 per month as support. In October 1977, the mother became financially unable to care for herself and her son and voluntarily relinquished complete custody to the father. The father had remarried. In January, 1979, the father moved from Pike County and left Rusty with his paternal grandparents. They immediately placed the child with W. C. and Nell Watkins. Nell Watkins is the sister of the father of Rusty.

After relinquishing custody of Rusty, the mother went to Mississippi and obtained employment as a long-haul truck driver. After a time she began to drive a truck as a team with Pendergrass. They drove and lived together for approximately a year and established a residence in Texas. June called her former mother-in-law from time to time inquiring about Rusty. She sent him money on his birthday and wrote him. In May 1979, after learning that the father had left the child and custody had been taken by the Watkinses, June returned to Troy and obtained an agreement from the father that custody of Rusty be returned to her. Based upon a petition and the agreement of the parents, Judge Green entered judgment on May 12, 1979, returning custody to the mother and directed the sheriff to effect return of Rusty to the mother.

The Watkinses then filed a petition in a separate proceeding before Judge Butts (the other judge of the 12th circuit) in Pike County Court seeking custody of Rusty, alleging the parents to be unfit for custody. Motion for instanter custody was also filed. Instanter temporary custody was granted to the Watkinses ex parte with hearing set thereon for May 17, 1979. There was no hearing set upon the petition for permanent custody. The petitions presented to Judge Butts and the instanter order for custody signed by him were dated May 11. However, they were not filed in the clerk's office until May 14. On May 15, Judge Butts, upon motion of then counsel for the mother, continued the May 17 hearing. That counsel then was replaced. The order of continuance stated that the case was set for "hearing on its merits" on June 20, 1979.

On May 18, the Watkinses filed a motion with Judge Green in the divorce case requesting that he set aside his modification order of May 12 by which he granted custody to the mother. Judge Green immediately set aside the May 12 order as requested without notice to counsel or the parents of Rusty.

The mother appeared in person and by counsel and the father appeared by the same counsel on June 20, 1979, after filing motions to dismiss. Representing the father, counsel moved for a continuance because the father (a truck driver) was unable to leave New Orleans because of the truckers' strike. Continuance was denied. The court announced in open court that both the petition of the mother for custody to be returned to her in the original case and that of the Watkinses for permanent custody would be heard at the same time. In other words, Judge Butts assumed control of the original case between the father and mother previously heard by Judge Green and combined it for hearing and disposition with the separate action of the Watkinses. Counsel for the parents strenuously objected, insisting that the hearing was set only upon the ex parte order for temporary custody. Counsel stated to the court that the father was a party and the legal custodian of Rusty by virtue of the re-instatement of the judgment of October 1977, after the setting aside by Judge Green of his modification of May 12, 1979, and could not be present for the hearing. Counsel further objected to the consolidation of the two cases and the holding of a hearing for final judgment thereon without previous notice and sufficient opportunity to prepare.

The court proceeded to hear the matters and entered judgment on June 22, 1979, granting custody of the child, Rusty, to the Watkinses, forbidding his removal from the jurisdiction of the court, and granting reasonable visitation rights to the parents upon the condition of the posting by each of a $5,000 cash bond. The parents appeal. We reverse.

The appellants, hereafter referred to as parents, have presented three issues on appeal. The first, succinctly stated, is that the parties who had secured entry of judgment by agreement in the original case were denied due process when that judgment was set aside a few days later upon motion by a stranger to the case without notice according to Rules 5 and 59, ARCP.

We consider that Judge Green erred in setting aside a judgment deciding issues between the parents of Rusty upon the motion of the Watkinses who were not parties in that case and who had not moved for and been granted intervention under Rule 24, ARCP. The Watkinses were without standing in the case between the parents and had no right to challenge the judgment. TRW, Inc. v. Ellipse Corp., 495 F.2d 314 (7th Cir. 1974); Mettee v. Bolling, 266 Ala. 50, 94 So.2d 191 (1957). There was no indication of fraud upon the court or invalidity apparent upon the face of the judgment. There are decisions which permit a non-party to attack a judgment on such grounds. In such cases, the court could have set the judgments aside sua sponte. Kupferman v. Consolidated Research and Manufacturing Corp., 459 F.2d 1072 (2d Cir. 1972); State Farm Mutual Insurance Co. v. Senn, 277 Ala. 508, 172 So.2d 533 (1965); Aiello v. Aiello, 272 Ala. 505, 133 So.2d 18 (1961); Taylor v. Jones, 202 Ala. 18, 79 So. 356 (1918). It does not cure the error to contend the court had power to set aside the judgment under Rule 59(d) ARCP. We need not decide whether it did or not. The fact is, it did not set it aside under that rule and for a reason for which it might have granted a motion for new trial.

The continued existence of the judgment giving the mother custody would not have prevented the Watkinses bringing their petition challenging her fitness as a parent and seeking custody, although its existence would have placed the burden upon the Watkinses of overcoming by clear and convincing evidence the primary right of a parent to custody of her own child. The proper forum for the Watkinses was in the original case before Judge Green who was familiar with the parties and had assumed jurisdiction over the child. The action of the Watkinses created the confusion of two cases relating to the same child. Their petition filed before Judge Butts disclosed the existence of the other case and their knowledge of it.

This court considers the setting aside of the judgment granting custody to the mother upon the motion of non-parties without motion to intervene and the conceding of authority to another tribunal without notice, erroneous.

However, we do not reverse the judgment of the trial court for that error nor for the charged error of putting the parents to trial on the issue of...