Weldon v. Ballow

Decision Date30 October 2015
Docket Number2140471.
Citation200 So.3d 654
Parties Athenia Clark Tanner WELDON v. Linda BALLOW.
CourtAlabama Court of Civil Appeals

Judy H. Barganier and Brian T. Bird of Law Offices of Judy H. Barganier, P.C., Montgomery, for appellant.

Benjamin E. Pool, Montgomery, for appellee.

MOORE, Judge.

Athenia Clark Tanner Weldon (“the mother) appeals from a judgment declaring that the Grandparent Visitation Act (“the GVA”), Ala.Code 1975, § 30–3–4.1, is not unconstitutional, thereby denying her counterclaim against Linda Ballow (“the grandmother”). We reverse the judgment.


On March 28, 2014, the grandmother filed a petition in the Autauga Circuit Court (“the trial court) seeking visitation with R.C.T. and R.E.T., the children born of the mother's marriage to the grandmother's son, Carl Allen Tanner, Jr. (“the father), pursuant to the GVA.1 The grandmother attached to the petition her affidavit in which she attested to having assumed some of the care-taking responsibilities for the children and to having developed a significant emotional relationship with the children both before and after the father died in 2008; she also attached the affidavit of her husband in which he attested that, following the death of the father, and particularly after the mother began a relationship with Glen Weldon, who she eventually married, the mother restricted interaction between the grandmother and the children, ultimately disallowing visitation between the children and the grandmother altogether. On May 26, 2014, the mother filed an answer and a counterclaim seeking a judgment declaring the GVA facially unconstitutional, which counterclaim the mother amended on June 5, 2014. The mother served Luther Strange, the Attorney General for the State of Alabama, with a copy of her counterclaim. See Ala.Code 1975, § 6–6–227 ([I]f the statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the State shall also be served with a copy of the proceeding and be entitled to be heard.”). On May 27, 2014, the grandmother filed a reply to the mother's counterclaim. On September 23, 2014, the attorney general filed a notice of appearance to defend the constitutionality of the GVA. The attorney general filed a reply to the mother's counterclaim on November 5, 2014.2

On February 10, 2015, after receiving briefs from the parties and hearing arguments of counsel, the trial court entered an order denying the mother's counterclaim. In that order, the trial court certified that “the judgment should be entered and there is no just reason for delay” and that “this judgment is final pursuant to Ala. R. Civ. P.[, Rule] 54(b).” The mother filed her notice of appeal on March 9, 2015.

Finality of the Judgment

Before proceeding on the merits, we must first ascertain whether the trial court properly certified its February 10, 2015, order as a final judgment under Rule 54(b), Ala. R. Civ. P. That rule provides, in pertinent part:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

The trial court complied with the rule by directing “that this judgment should be entered and that there is no just reason for delay.” See Sho–Me Motor Lodges, Inc. v. Jehle–Slauson Constr. Co., 466 So.2d 83 (Ala.1985). However, a trial court's certification “does not ipso facto make the order appealable.” 2 Champ Lyons, Jr., and Ally Windsor Howell, Alabama Rules of Civil Procedure Annotated, Rule 54, § 54.3, p. 154 (4th ed.2004). This court must still determine whether, as a matter of law, a single claim has been completely adjudicated and whether the trial court exceeded its discretion in finding no just reason for delay. Id.

In her counterclaim, the mother sought a judgment declaring that the GVA is facially unconstitutional. In 1568 Montgomery Highway, Inc. v. City of Hoover, 45 So.3d 319 (Ala.2010), a municipality commenced an action against a store operator seeking a judgment declaring that the store operator had violated a state statute that had been incorporated into a local ordinance restricting the location of “adults-only enterprises.” The store operator filed a counterclaim challenging the constitutionality of the statute and the ordinance. 45 So.3d at 321–22. Both the trial court and our supreme court treated the counterclaim not as a mere defense to the action filed by the municipality, but as a separate claim altogether. In Alabama Disposal Solutions–Landfill, L.L.C. v. Town of Lowndesboro, 837 So.2d 292 (Ala.Civ.App.2002), a landfill operator and a county filed a declaratory-judgment action against a town seeking to have a municipal ordinance prohibiting the operation of a landfill within the town's limits declared void and unconstitutional. The town filed a counterclaim alleging that the county's contract with the landfill operator was invalid. This court treated the counterclaim as a separate claim. 837 So.2d at 299. By analogy, the counterclaim filed by the mother in this case is properly considered a separate claim, which was fully adjudicated when it was denied in the trial court's order. See also Curtiss–Wright Corp. v. General Elec. Co., 446 U.S. 1, 9, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) ([C]ounterclaims, whether compulsory or permissive, present no special problems for Rule 54(b) determinations; counterclaims are not to be evaluated differently from other claims.”).

The trial court certified that “there is no just reason for delay” without specifying its reasoning. See Schneider Nat'l Carriers, Inc. v. Tinney, 776 So.2d 753 (Ala.2000) (holding that trial court certifying order as a final judgment need not detail its justification for finding no just reason for delay). In Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256 (Ala.2010), our supreme court adopted the five-factor analysis originally set out in Allis–Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (3d Cir.1975), overruled on other grounds by Curtiss–Wright Corp. v. General Electric Co., supra, for courts to use when determining whether “there is no just reason for delay”; those factors are:

(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the [trial] court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in a set-off against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.”

Allis–Chalmers Corp., 521 F.2d at 364 (footnotes omitted). After considering those factors, we conclude that the trial court did not exceed its discretion in certifying the order as final and, thus, appropriate for immediate appeal.

The appellate courts of this State most often reject a Rule 54(b) certification “if the issues in the claim being certified and a claim that will remain pending in the trial court “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.”

Schlarb v. Lee, 955 So.2d 418, 419–20 (Ala.2006) (quoting Clarke–Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987) ). In this case, the only claim still pending in the trial court is the claim by the grandmother for visitation with the children. In ruling on that claim, the trial court would have no occasion to reconsider the facial constitutionality of the GVA or to render a judgment that would be inconsistent with its determination that the GVA is facially constitutional. Its decision to award or to deny the grandmother visitation would depend solely on the application of the GVA, and, if the trial court misapplied the law, any claim arising from that misapplication would be separate and distinct from the claim that the GVA is facially unconstitutional. See State v. Adams, 91 So.3d 724, 754 (Ala.Crim.App.2010) (explaining the difference between an “as applied” constitutional challenge to a statute, which is based on the facts of a particular case, and a “facial” constitutional challenge to a statute, which is based on whether the statute is always unconstitutional, regardless of the particular facts). Hence, we find no risk of inconsistent results from a separate adjudication of the grandmother's visitation claim. Likewise, we cannot conceive of any ruling on the grandmother's claim that would cause this court to review a second time the issue whether the GVA is facially unconstitutional.

If the trial court denies the grandmother's pending petition, the grandmother would not be allowed to visit with the children over the mother's objection. However, that denial would not moot the mother's appeal. The mother has consistently argued throughout these proceedings that the GVA unconstitutionally deprives custodial parents of due process by, among other reasons, forcing them into litigation over their parental decisions regarding grandparent visitation. The mother maintains that the GVA

“requires fit parents to be drawn into court, to incur legal expenses, and to defend against their fundamental right to make decisions concerning their children; and puts fit parents in the same category as sex offenders and other classes of people against whom the state does have a compelling interest to protect children.”

Even if the trial court ultimately denies the grandmother's petition, that alleged damage cannot be undone. See ...

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