Ruzic v. State ex rel. Thornton

• Decision Date: 23 May 2003
• Citation: 866 So.2d 564
• Parties: Walter RUZIC v. STATE of Alabama ex rel. Betty J. THORNTON.
• Court: Alabama Court of Civil Appeals

866 So.2d 564

Walter RUZIC v. STATE of Alabama ex rel. Betty J. THORNTON.

2020231.

Court of Civil Appeals of Alabama.

May 23, 2003.

Douglas Rogers, Birmingham, for appellant.

William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.

PITTMAN, Judge.

Walter Ruzic ("the father") appeals from a judgment of the Shelby Circuit Court purporting to find a child-support arrearage of $57,617.04. Because we conclude that the circuit court did not have jurisdiction to enter that judgment, we dismiss the father's appeal with instructions.

In October 1986, a Texas district court entered a judgment divorcing the father from Betty J. Ruzic, who is now known as Betty J. Thornton ("the mother"). At the time of the divorce judgment, the parties' three children were 15, 11, and 5 years old, respectively, and the Texas court directed the father to pay $500 per month to the mother as child support.

In February 1992, the State of Texas transmitted documents to the Child Support Enforcement Division of the State of Alabama Department of Human Resources, seeking enforcement of the father's child-support obligations pursuant to the Texas divorce judgment. In March 1992, on behalf of the mother, the State of Alabama filed a petition in Baldwin County under the Uniform Reciprocal Enforcement of Support Act ("URESA"), § 30-4-80 et seq., Ala.Code 1975,¹ seeking, among other things, the establishment of a prospective child-support order as to the father (who had moved to Alabama) and a judgment declaring the father to be $12,042 in arrears in making child-support payments under the Texas judgment. The Baldwin Juvenile Court set the case for a hearing on the petition; after a hearing, the juvenile court entered a judgment in May 1992 declaring that the father had a duty to support the parties' children, that $300 per month would be a reasonable amount for the father to pay, and that the father should pay $300 per month to the juvenile court clerk as child support. However, the juvenile court did not find the father to be in arrears in paying the support owed under the Texas judgment, and it entered zeroes in blanks provided on the judgment form for the amount of the father's child-support arrearage and for the amount owed by the father as "reimbursement." No appeal was taken by either party from that judgment.

Although the Baldwin Juvenile Court had found that the father owed no arrearage under the Texas divorce judgment in May 1992, the State (on behalf of the mother) later filed a petition in Baldwin County seeking a judgment declaring the father to be $22,422 in arrears under the Texas divorce judgment and $900 in arrears under the juvenile court's 1992 URESA judgment. The father filed an answer asserting that the arrearage claim arising under the Texas divorce judgment was barred by the doctrine of res judicata because, he said, the 1992 URESA judgment had determined that he was not in arrears in paying support under the Texas judgment. The State subsequently petitioned to modify the Baldwin Juvenile Court's 1992 URESA judgment so as to increase the father's child-support obligation beyond that established in that judgment. The record does not reflect whether these two petitions were acted upon, although the Baldwin Juvenile Court did deny the State's "motion for case review" in April 1996.

After the mother and the youngest child had moved to Jefferson County, Alabama, the State filed a petition requesting that the father be held in contempt for failure to pay support owed under the Baldwin Juvenile Court's 1992 URESA judgment. The State also filed a motion to transfer the pending child-support action to Jefferson County; that motion was granted, and the case was transferred to the Jefferson Juvenile Court. However, because the mother subsequently moved from Jefferson County to Shelby County, the Jefferson Juvenile Court took no action on the merits of the case; instead, that court transferred the case to Shelby County, where the Shelby District Court (sitting as that county's juvenile court pursuant to § 12-15-2, Ala.Code 1975) took jurisdiction over the case.

In June 1999, the State (on behalf of the mother) filed a petition in the Shelby District Court alleging that the father was $4,695 in arrears under the 1992 URESA judgment and $18,342 in arrears under the 1986 Texas divorce judgment. In November 1999, after the father had failed to appear, the Shelby District Court entered a default judgment against the father that, as amended, declared the father to be $19,842 in arrears as to his child-support obligations. An income-withholding order issued by the Shelby District Court in January 2000 directed the father's employer to withhold $300 per month as current child support, and it found that the father owed $20,841.84 in past child support. The father was arrested and incarcerated because of his failure to appear, but he was discharged from confinement after paying $5,000 and executing a $16,000 appearance bond.

In August 2000, the father filed a motion, pursuant to Rule 60(b), Ala. R. Civ. P., for relief from the Shelby District Court's November 1999 default judgment. He contended that that judgment had been based upon an arrearage that included sums allegedly owed under the 1986 Texas divorce judgment; he further asserted that the State's claim that the father was in arrears under the Texas divorce judgment was barred by the doctrine of res judicata because, he said, that claim was contrary to the Baldwin Juvenile Court's intervening May 1992 URESA judgment that had found him not to be in arrears under the Texas divorce judgment. The State then amended its contempt petition, with leave of the Shelby District Court, so as to specifically allege that the father was in arrears under both the Texas divorce judgment and the Baldwin County URESA judgment and that the amounts owed under those judgments should be calculated separately.

After a hearing, the Shelby District Court issued a judgment on February 28, 2001, granting the father's motion for relief from the November 1999 default judgment, amending the default judgment so as to remove the child-support arrearage allegedly arising under the Texas divorce judgment, and stating that the father owed only those sums due under the Baldwin Juvenile Court's May 1992 URESA judgment that had not been paid. That judgment was entered by the district court clerk on March 1, 2001.

Because the Shelby District Court sat as the juvenile court in this child-support action, Rule 28(C), Ala. R. Juv. P., which applies to all appeals from juvenile courts, required the State, if it wished to appeal from the judgment entered on the father's Rule 60(b) motion deleting the child-support arrearage allegedly arising under the Texas divorce judgment from the November 1999 judgment, to appeal within 14 days of the judgment granting that motion and amending the district court's judgment.² The State therefore had until March 15, 2001, to file a notice of appeal. However, the State did not appeal from the Shelby District Court's judgment until April 30, 2001, at which time it filed a notice of appeal to the Shelby Circuit Court and an affidavit of its counsel. According to counsel's affidavit, copies of the March 1, 2001, judgment of the Shelby District Court were not mailed to the parties until April 16, 2001; counsel averred that the notice of appeal to the circuit court was filed within 14 days of that mailing date. There is no indication in the record that the State sought or obtained an extension of time to appeal from the district court pursuant to Rule 77(d), Ala. R. Civ. P.,³ which provides, in pertinent part:

"Lack of notice of the entry [of an order or judgment] by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions."

Although "[t]he question of jurisdiction is always fundamental" and "jurisdiction over the subject matter cannot be created by waiver or consent," Norton v. Liddell, 280 Ala. 353, 356, 194 So.2d 514, 517 (1967), the Shelby Circuit Court nevertheless ordered the case set for a trial.⁴ After holding a trial on the merits, the circuit court purported to enter an order in May 2002 finding the father to be $53,351.54 in arrears under the child-support provisions of the Texas divorce judgment and $4,265.50 in arrears under the 1992 URESA judgment; it reserved jurisdiction to determine how the arrearages would be satisfied. The father then requested the circuit court to alter, amend, or vacate its order, and the State filed a motion to establish a payment schedule. In September 2002, the circuit court purported to enter another order; that order directed the father to make payments of $500 per month and to file claims for credits against the arrearages.

In November 2002, the circuit court purported to enter an order on the case action summary sheet declaring that the father had not presented any claims for credits against the arrearages found in its May 2002 order, labeling its earlier orders "final," and taxing costs. The father filed a notice of appeal to this court within 42 days of the circuit court's November 2002 order entered on the case action summary sheet.

Although neither party has questioned our appellate jurisdiction, choosing instead to focus on whether the Baldwin Juvenile Court's 1992 URESA judgment is res judicata as to further enforcement proceedings in Alabama respecting any child-support arrearages that accrued under the Texas divorce judgment, "we must consider...