Richburg v. Richburg

• Decision Date: 09 July 2004
• Citation: 895 So.2d 311
• Parties: James David RICHBURG, Sr., and Mary Ann Richburg v. James David RICHBURG II and Nancy Richburg.
• Court: Alabama Court of Civil Appeals

895 So.2d 311

James David RICHBURG, Sr., and Mary Ann Richburg v. James David RICHBURG II and Nancy Richburg.

2030098.

Court of Civil Appeals of Alabama.

July 9, 2004.

J. McGowin Williamson of Williamson & Williamson, Greenville, for appellants.

David K. Hogg, Dothan, for appellee James David Richburg II.

YATES, Presiding Judge.

On February 11, 2002, James David Richburg II, the father, filed a petition seeking temporary and permanent custody of the child, who was in the primary physical custody of Nancy Richburg, the mother. On February 15, 2002, the trial court awarded temporary custody to the father. On April 3, 2002, James David Richburg, Sr., the paternal grandfather, and Mary Ann Richburg, the paternal grandmother, moved to intervene in the action, seeking to establish grandparent visitation pursuant to § 30-3-4.1, Ala.Code 1975. On April 16, 2002, the court entered an order concerning the father's petition, stating that "after conference of the parties and stipulation of the attorneys, this matter is continued indefinitely."

On June 7, 2002, the trial court held a hearing on the grandparents' motion to intervene. At the hearing, the trial court noted on the record that the mother and the father had agreed to a settlement, whereby the parties would have joint legal custody with the father having primary physical custody of the child. On November 6, 2002, the trial court entered an order allowing the grandparents to intervene but denying their request for grandparent visitation. On November 21, 2002, the grandparents filed a motion for a new trial. Following a hearing on that motion, the trial court, on December 13, 2002, entered an order entitled "Amended Order" that was essentially the same order that had been entered on November 6, 2002, denying the grandparents visitation.

The December 13 order stated:

"This matter having come before the Court on June 7, 2002, on the Motion to Intervene for the Purpose of Establishing Grandparent Visitation Rights filed by [the grandparents], and, on December 10, 2002, on a Motion for New Trial and/or Reconsideration filed by [the grandparents] and, based on the pleadings and testimony taken in open Court, the Court finds as follows:

"1. That [the grandparents] are the grandparents of [the child]. That [the grandparents] had been substantially involved in said minor child's life, providing both financial and personal support, with said minor child residing in their home for a great deal of his life. That the evidence is undisputed that it would be in the best interest of said minor child that said grandparents be entitled to visit with said child and further that the failure to allow said visitation would be against the child's best interest and would cause substantial harm to the child.

"2. That [the father] of [the child], strenuously objects to any court ordered visitation and [the mother] has not appeared before the Court to express her opinion on the matter.

"3. Specifically, the Court finds that it is undisputed, and, in fact, admitted by the father (Plaintiff) that is definitely in the child's best interests that he be allowed to visit with his paternal grandparents; that under present Alabama case and statutory law, parental right to control over one's minor child includes the right to deny visitation privileges to non-parental parties even when such visitation is in the best interests of the child.

"It is therefore, Ordered, Adjudged and Decreed that [the grandparents] be and are hereby allowed to intervene in the above styled matter, but the Court interprets the existing statutory and case law to prohibit this Court from allowing these grandparents visitation over the objection of one of the parents."

On October 1, 2003, the grandparents filed a motion asking the trial court to certify its November 6, 2002, and December 13, 2002, orders as final, pursuant to Rule 54(b), Ala. R. Civ. P. In the motion, the grandparents contended that the father's petition for permanent custody had not been adjudicated. On October 1, 2003, the trial court entered an order certifying its December 13, 2002, order as a final judgment. On October 28, 2003, the grandparents filed a notice of appeal. The father argues that the grandparents' appeal is untimely because it was not filed with 42 days of the entry of the December 13, 2002, order. An appeal ordinarily lies only from a final judgment. § 12-22-2, Ala.Code 1975; Bean v. Craig, 557 So.2d 1249 (Ala.1990). "A final judgment is necessary to give jurisdiction to this court on appeal." Marsh v. Wittmeier, 280 Ala. 172, 173, 190 So.2d 920, 920 (1966). A judgment is final if it disposes of all the claims and controversies between all the parties. Heaston v. Nabors, 889 So.2d 588 (Ala.Civ.App.2004).

Section 34-3-21, Ala.Code 1975, which applies to settlement agreements occurring at the trial level, provides that "[a]n attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court." A settlement agreement announced in open court may also be binding. Jones v. Blanton, 644 So.2d 882 (Ala.1994); Jones v. Stedman, 595 So.2d 1355 (Ala.1992).

In Rudolph v. First Southern Federal Savings & Loan Ass'n, 414 So.2d 64 (Ala.1982), the borrowers appealed from a partial summary judgment entered in favor of the defendant on a negligent-inspection claim. The trial court's order left pending certain claims, but the partial summary judgment was made final pursuant to Rule 54(b). However, the record was unclear as to the disposition of a conversion claim. Neither the defendant's summary-judgment motion nor the trial court's Rule 54(b) order addressed this issue. The borrowers, in a postjudgment motion, asked that the court amend its order so as to clearly state that the summary judgment applied only to the negligent-inspection claim. The trial court entered an order stating that the borrower's motion to amend had been denied "by agreement." The supreme court "suspected" that the "agreement" referred to by the trial court was a reference to the defendant's answer to the complaint in which it stated that it was holding the unpaid portion of a loan and offered to pay that sum as the trial court may deem appropriate. The supreme court determined that the conversion claim was still before the trial court because "an agreement of the parties, as well as responsive pleadings, not reduced to a court order, do not constitute an adjudication of a pending claim." 414 So.2d at 72.

In McGlothlin v. First Alabama Bank, 599 So.2d 1137 (Ala.1992), the attorney who had represented mortgagors in a foreclosure sale sought to intervene in a suit brought by the junior mortgagee against the mortgagors and the senior mortgagee. The trial court had entered a summary judgment in favor of the junior mortgagee, and the parties had subsequently agreed to a settlement, when the attorney's motion to intervene was filed almost one year after the summary judgment had been entered. However, the trial court granted the attorney's motion to intervene for the purposes of considering the attorney's "motion for a new trial/motion to reconsider order on summary judgment," and the court then found that its summary-judgment order was not final (specifically finding that there was no Rule 54(b) language, that the court's order did not address the right to redemption, that the order did not divest the mortgagors of their interest, and that the order did not set out the amount the senior mortgagee was owed). Finding that the parties had settled all matters after the entry of the summary judgment, the trial court ultimately dismissed the case. The issues on appeal were whether the trial court's order was final and whether the court erred in allowing the attorney to intervene. The mortgagors argued that the summary-judgment order should have been deemed final because the parties later settled the dispute. The supreme court, citing Rudolph, held that the subsequent settlement did not constitute an adjudication of a pending claim.

Although a settlement agreement may be binding and enforceable, the settlement agreement in the present case had not been reduced to a judgment and, therefore, the court's order of December 13, 2002, was not a final order. Accordingly, the grandparents' appeal, filed within 42 days of the trial court's October 1, 2003, Rule 54(b) order certifying the judgment as final is timely.

The grandparents argue that the trial court erred in denying their petition for visitation under § 30-3-4.1, because the trial court found that the child would be substantially harmed if the grandparents were not awarded visitation.

In 2000, the United States Supreme Court issued an opinion in which six Justices of that Court affirmed the Washington Supreme Court's decision striking down Washington's nonparental-visitation statute as an unconstitutional infringement upon a parent's fundamental right to rear his or her children. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Troxel, the Supreme Court stated that, with regard to child-visitation rights, the "right of parents to make decisions concerning the care, custody, and control of their children" is a fundamental right protected by the Due Process Clause. 530 U.S. at 66, 120 S.Ct. 2054. The Supreme Court struck down the Washington statute, which provided that" `any person'" at "`any time,'" could seek visitation rights with a child and that such visitation may be granted if "`visitation may serve the best interest of the child.'" 530 U.S. at 67, 120 S.Ct. 2054 (emphasis omitted). In Troxel, the paternal grandparents filed a petition seeking visitation with the two children of their deceased son. The mother opposed the petition.¹ The trial court granted visitation to the grandparents, and the mother appealed to the Washington Court of Appeals, which reversed the trial court's...