T.T.T. v. R.H.

• Citation: 999 So.2d 544
• Decision Date: 27 June 2008
• Docket Number: 2070158.
• Parties: T.T.T. v. R.H. and J.R.H.
• Court: Alabama Court of Civil Appeals

999 So.2d 544

T.T.T. v. R.H. and J.R.H.

2070158.

Court of Civil Appeals of Alabama.

June 27, 2008.

Donald D. Doerr, Jr., Bay Minette, for appellant.

Stephen P. Johnson of Brackin, McGriff & Johnson, P.C., Foley, for appellees.

THOMAS, Judge.

T.T.T. ("the father") appeals from the judgment of the Baldwin Juvenile Court finding that he voluntarily relinquished custody of T.R.T. ("the child") and awarding sole legal and physical custody of the eight-year-old child to R.H. ("the maternal grandmother") and J.R.H. ("the maternal grandfather"), subject to visitation by the father. The father also appeals the juvenile court's award of child support to the maternal grandparents. We affirm the juvenile court's judgment awarding custody to the maternal grandparents. We reverse the judgment awarding the maternal grandparents child support and remand the cause to the juvenile court so that it may properly apply Rule 32, Ala. R. Jud. Admin.

The father and T.H.T.D. ("the mother") divorced in June 2000, when the child was approximately seven months old. The June 2000 divorce judgment incorporating an agreement of the parents awarded to the mother sole custody of the child, subject to the father's graduated, scheduled, and supervised visitation. For the most part, the father seldom exercised visitation with the child.¹ On May 2, 2007, the mother died from a drug overdose.²

On May 11, 2007, the maternal grandparents, acting pro se, filed a dependency petition alleging that the child, who had been left in their care for several years by the mother, was dependent and in need of care and supervision because the child had no parent or guardian able to provide for her support, training, and education. The dependency petition identified T.T.T. as the child's father but alleged that his address was unknown.

Although the record is unclear as to when it occurred, the juvenile court apparently ordered the maternal grandparents to locate and serve the father. The maternal grandmother testified that her daughter, the maternal aunt, used the Internet and eventually located the father's sister, who, in turn, contacted the father. The father then contacted the maternal grandparents and learned of the mother's death and that the child was and had been living with the maternal grandparents for several years.

After filing the dependency petition pro se, the maternal grandparents retained an attorney and filed a "Petition for Temporary and Permanent Custody" in the juvenile court on August 17, 2007. That same day, the juvenile court entered a pendente lite order awarding the maternal grandparents temporary, sole legal and physical custody of the child. The action initiated by the maternal grandparents' pleadings was assigned case number JU-00-42.02.

On August 29, 2007, the father filed an answer denying the maternal grandparents' allegations. The father also filed a counterclaim seeking custody of the child and a motion for visitation with the child. The action initiated by the father's pleading was assigned case number JU-00-42.03.

On September 7, 2007, the juvenile court held a hearing. The juvenile court consolidated case numbers JU-00-42.02 and JU-00-42.03 upon the joint motion of the parties. The juvenile court heard disputed, oral testimony from the father and the maternal grandmother. On September 12, 2007, the juvenile court entered an "Order on Temporary Issues" finding that "the circumstances involved in this matter do not amount to an emergency situation[;] however, the Court believes that the status quo will be in the best interest of the child. Therefore, the Petitioners, [the maternal grandparents], shall maintain temporary legal and physical custody of the child until further order of the court." The juvenile court awarded visitation to the father.

On October 24, 2007, the juvenile court held a hearing at which it heard disputed, oral testimony from the father, the maternal grandmother, the maternal aunt, a licensed professional counselor specializing in the assessment and treatment of children, the principal of the child's school, and a neighbor to the maternal grandparents.

On October 31, 2007, the juvenile court entered a judgment that, among other things, found that the father had voluntarily relinquished his right to custody of the child and awarded to the maternal grand-parents sole legal and physical custody of the child subject to the father's telephonic and in-person visitation. That judgment also ordered the father to pay child support to the maternal grandparents. The order outlined in very specific detail the liberal visitation awarded to the father.

On October 30, 2007, before the juvenile court's judgment was entered, the father filed a postjudgment motion challenging the juvenile court's finding that he had voluntarily relinquished his right to custody of the child. On November 9, 2007, the father timely appealed.

Jurisdiction

Although neither party on appeal has raised the issue of jurisdiction before this court, jurisdictional matters are of such significance that the court may raise them ex mero motu. Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004).

The father's postjudgment motion sought relief from a judgment that was not yet final because the motion was filed one day before the entry of the judgment on October 31, 2007. We note that the case-action summary has an entry on October 24, 2007, the day of the final hearing, stating: "Trial this date and order issued with [counsel for the maternal grandparents] to prepare order." The Supreme Court of Alabama has recently addressed this issue, stating:

"We hold that if a party moves for a judgment as a matter of law or, in the alternative, for a new trial before the court has entered judgment, the motion shall be treated as having been filed after the entry of the judgment and on the day thereof."

New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala.2004); see also Rule 4(a)(3), Ala. R.App. P.; and Richardson v. Integrity Bible Church, Inc., 897 So.2d 345, 347 (Ala.Civ.App.2004) ("[A] premature postjudgment motion that, if it had been directed to a final judgment, would toll the time for filing a notice of appeal from a final judgment (see Ala. R.App. P., Rule 4(a)(3)) `quickens' on the day that the final judgment is entered."). The judgment in this case was not entered until the day after the father's postjudgment motion was filed. The postjudgment motion is treated as having been filed after the entry of the judgment, on the day the judgment was entered. Id. That motion was deemed denied by operation of law on November 14, 2007. After the father's postjudgment motion was denied by operation of law, his November 9, 2007, timely notice of appeal became effective on November 14. Rules 4(a)(3) and (a)(5), Ala. R.App. P.; New Addition Club, Inc. v. Vaughn, 903 So.2d at 72.

The juvenile court had jurisdiction to hear the maternal grandparents' August 17, 2007, petition for custody. On May 11, 2007, 9 days after the mother's death, the maternal grandparents filed a dependency petition alleging that the child was dependent and in need of care and supervision because the child had no parent or guardian able to provide for her support, training, and education. The maternal grandparents alleged that the child was dependent, thereby triggering the dependency statutes of the Juvenile Code. Ex parte W.H., 941 So.2d 290 (Ala.Civ. App.2006); W.T. v. State Dep't of Human Res., 707 So.2d 647, 650 (Ala.Civ.App.1997) (superseded by statute on other grounds). Section 12-15-30, Ala.Code 1975, provides that "the juvenile court shall exercise exclusive original jurisdiction of proceedings in which a child is alleged to be ... dependent" and that the juvenile court "shall also exercise exclusive original jurisdiction of ... [p]roceedings to determine custody ... of a child when the child is otherwise before the court." § 12-15-30(a) and (b)(1), Ala.Code 1975.

Because the child was properly before the juvenile court based on the maternal grandparents' dependency petition, the juvenile court also had jurisdiction to adjudicate the parties' custody dispute. § 12-15-30(b)(1); see also F.D.M. v. C.D.S., 646 So.2d 117, 118 (Ala.Civ.App.1994)(holding that the trial court did not have jurisdiction only pursuant to § 12-15-30(a), Ala. Code 1975, but also because the child was properly before the court); Ferguson v. State, 251 Ala. 645, 38 So.2d 853 (1949) (holding that the trial court could properly exercise concurrent jurisdiction when there was an emergency relating to the immediate welfare of a child, when the mother had filed a dependency petition in the trial court, and despite the fact that decrees from Virginia were entitled to full faith and credit).

Facts

The maternal grandmother testified that the child had lived with her for the first three and the last three years of the child's life and that the maternal grandparents had been her primary caregivers and had also sometimes assisted the mother, their daughter. She was quite clear that the father had hardly been involved in the child's life in any capacity. On May 2, 2007, when the mother overdosed and died, the child was and had been living with the maternal grandparents.

In June 2000 the mother and the father divorced; at some point approximately three years later, after the mother had remarried, the mother and the child moved to Louisiana. In June 2005, the mother and the child relocated to Alabama because both had been victims of domestic violence. Ultimately, the mother returned to Louisiana after reconciling with her second husband, but the child remained with the maternal grandparents. The maternal grandmother enrolled the child in the school where the maternal grandmother is a teacher. The child has attended that school since kindergarten and, at the time of trial, was in second grade.

The maternal grandmother testified that the father had seen the child only one time. She stated that the...