T.L.H. v. R.A.R.

• Decision Date: 11 May 2007
• Docket Number: No. 2050796.,2050796.
• Citation: 977 So.2d 482
• Parties: T.L.H. v. R.A.R.
• Court: Alabama Court of Civil Appeals

977 So.2d 482

T.L.H. v. R.A.R.

No. 2050796.

Court of Civil Appeals of Alabama.

May 11, 2007.

Certiorari Denied July 13, 2007 Alabama Supreme Court 1061217.

Frederick A. Erben of Beddow, Erben & Bowen, P.A., Birmingham; and Clarence L. McDorman, Birmingham, for appellant.

John D. McCord of McCord & Martin, Gadsden, for appellee.

On Applications for Rehearing

THOMPSON, Presiding Judge.

The opinion of March 2, 2007, is withdrawn, and the following is substituted therefor.

On July 25, 2005, R.A.R. filed a petition in the Etowah Juvenile Court (hereinafter "the trial court") alleging that he was the biological father of G.K.L. ("the child"), requesting that the trial court enter an order establishing his paternity of the child, and seeking a determination of his custodial rights to the child. In his petition, R.A.R. alleged that a paternity test had already been completed and that the results of that test indicated that he was the biological father of the child. R.A.R. later amended his petition to request that the trial court enter an order changing the child's last name to his name.

On October 6, 2005, T.L.H., the child's mother, answered and counterclaimed, alleging that R.A.R. was the biological father of the child but that she had been married to J.A.H. at the time of conception. T.L.H. (hereinafter referred to as "the mother") requested, among other things, that the trial court make J.A.H. a party to the litigation, grant her full custody of the child, and award her child support from R.A.R. The mother later amended her counterclaim to request an award of retroactive child support to the date of the child's birth on March 18, 2004. On November 10, 2005, the trial court ordered that J.A.H. be made a party to the case; J.A.H. answered and waived any claim he had as the legal father of the child.

On November 17, 2005, the trial court entered an order finding R.A.R. to be the biological father of the child. The trial court entered a pendente lite order requiring R.A.R. (hereinafter referred to as "the father") to pay child support in the amount of $1,250 per month and awarding the father supervised visitation with the child. Following a two-day ore tenus hearing, the trial court entered a judgment on April 27, 2006, in which it awarded primary physical custody of the child to the mother and awarded the father unsupervised visitation with the child. The trial court ordered the father to pay the mother $1,500 per month in child support, to pay the `outstanding medical bills associated with the birth of the child, and to pay $8,925 of the mother's attorney's fees. The trial court further ordered that the child's last name be changed to that of the father.

On May 9, 2006, the mother filed a motion to alter, amend, or vacate the judgment, requesting, among other things, that the trial court reconsider provisions of its visitation award and its child-support award. Because the father's liability for the outstanding medical bills associated with the birth of the child was the subject of a separate action filed by the mother, the mother also challenged that part of the trial court's April 27, 2006, judgment ordering the father to pay the outstanding medical bills associated with the birth of the child. On May 22, 2006, the parties filed, pursuant to Rule 59.1, Ala. R. Civ. P., a joint agreement for an extension of time to give the trial court an additional 14 days to consider the mother's postjudgment motion. On June 5, 2006, the trial court entered an order amending its April 27, 2006, judgment, in pertinent part, to provide for the reimbursement of the mother's health-care expenses related to the birth of the child in addition to the payment of any outstanding medical expenses associated with the birth of the child. On June 19, 2006, the mother timely appealed.

At the outset, we note that when a trial court receives ore tenus evidence its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App. 1995). This "presumption of correctness is based in part on the trial court's unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor." Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000).

The mother raises six issues on appeal: (1) whether the trial court acted outside its jurisdiction by granting the father's request to change the child's last name; (2) whether the trial court erred in failing to order the father to pay child support retroactive to the date of the child's birth; (3) whether the trial court's award of child support was sufficient; (4) whether the trial court erred in ordering the father to reimburse the mother for medical expenses related to the birth of the child when it was not requested to do so; (5) whether the trial court erred by ordering the father to pay only a portion of the mother's attorney's fees; (6) whether the trial court abused its discretion by granting the father overnight visitation with the child and allowing the father to pick up the child for visitation and to return the child from visitation at the mother's home. We address each of the issues raised by the mother in turn.

The mother first contends that the trial court did not have subject-matter jurisdiction to order the change of the child's last name. Section 26-11-3(a), Ala.Code 1975, sets forth the procedure by which a father may petition to change the name of a child. That section provides:

"The father may petition at the time of filing the declaration of legitimation or at any time subsequent to the determination of legitimation to change the name of such child, stating in his declaration the name it is then known by and the name he wishes it afterwards to have. Such petition shall be filed in the office of the judge of probate of the father's residence or the child's residence."

The mother relies on this court's decision in Clark v. Clark, 682 So.2d 1051 (Ala.Civ.App.1996), in support of her position on appeal. In Clark, the mother petitioned the juvenile court to have her daughter's surname changed to the mother's maiden name; the juvenile court entered an order purporting to change the child's surname. Five years later, the father petitioned the circuit court to change his daughter's surname back to his own. The circuit court purported to grant the father's petition, and the mother appealed.

On appeal, the mother in Clark, relying on § 26-11-3, Ala.Code 1975, argued that the circuit court was without jurisdiction to grant the father's petition to change the daughter's surname. This court held that both the juvenile court and the circuit court had lacked subject-matter jurisdiction to enter a judgment changing a child's surname. In so holding, we determined that § 26-11-3 did not apply because that statute dealt only with the father's right to petition the probate court for a name change after there had been a declaration of legitimation. 682 So.2d at 1051. Further, this court recognized that no Alabama statute or caselaw existed that gave either the juvenile court or the circuit court the authority to change the child's name under the particular facts presented in Clark. 682 So.2d at 1051.

Our review of Alabama law since this court issued its decision in Clark reveals no new statute or caselaw giving the trial court in this case jurisdiction to change the child's surname. Section 26-11-3 provides a method by which the father can petition the probate court to change the child's name. A probate court has original and general jurisdiction over the "change of the name of any person residing in their county." § 12-13-1(b)(10), Ala.Code 1975. The juvenile court is without authority to change a child's name. See § 12-15-30 et seq., Ala.Code 1975 (listing proceedings over which the juvenile court has exclusive original jurisdiction).

"`A judgment is void if the court that rendered it lacked jurisdiction over the subject matter or over the parties.'" Clark, 682 So.2d at 1052 (quoting Bieber v. Bieber, 623 So.2d 1163, 1165 (Ala.Civ.App. 1992)). Because the trial court was without jurisdiction to change the child's surname, that portion of the trial court's judgment is void. Therefore, we dismiss the appeal as to this issue. See Jenkins v. Covington, 939 So.2d 31 (Ala.Civ.App. 2006)(a void judgment will not support an appeal).

The mother also contends that the trial court erred by failing to order the father to pay child support retroactive to the date of the child's birth. The record reveals that the child was born on March 18, 2004. The father testified that he began sending the mother cash for child support in May 2004. The father testified that he had mailed the mother a total of $1,500 in cash for child support; the mother testified that the father had given her $2,300 in cash for child support. At some point, the father, through his attorney at the time, mailed the mother a check for $3,000 for child support. However, counsel for the mother returned the check to the father out of an apparent concern that the acceptance of the $3,000 in child support would compromise the mother's position in a civil action brought by her against the father in March 2005. We explain the nature of that separate action later in this opinion. The record does not contain a copy of the check or of any correspondence relating to that check. In July 2005, the father, who was then represented by new counsel, mailed the mother a second check for child support in the amount of $5,500. In a letter mailed with the check and submitted into evidence at trial, counsel...