REL: 7/31/09
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF C I V I L APPEALS
SPECIAL TERM, 2009
2080221
R.D.B,
V.
A.C., C.B.C, D . A . C , and S. C.
Appeal from Franklin Circuit Court
(DR-07-69)
THOMAS, Judge.
A.C. ("the mother") and C.B.C. were married in 2004, when
the mother was already pregnant with her second child, D.A.C.
C.B.C. is the biological father of the mother's older child,
M.C.;
however,
D.A.C.
is
not
his
biological
offspring.
2080221
Pursuant to former Ala. Code 1975, § 26-17-5(a) (1),^ which was
in effect at all times pertinent to this appeal, however,
C.B.C.
("the
legal
father")
is D.A.C.'s presumed
father.
Former § 26-17-5(a) (1) read, in pertinent part:
" (a) A man is presumed to be the natural father
of a child if . .. :
"(1) He and the child's natural mother
are or have been married to each other and
the child is born during the marriage ...."
In April 2007, the mother filed for a divorce from the
legal father.
The trial court awarded the mother and the
legal father joint custody, pendente lite, with the parties
rotating physical custody of the children on a weekly basis.
The case was set for trial on May 1, 2008.
On
May
1,
grandparents")
2008,
moved
to
D.C.
and
intervene
S.C.
("the
in the divorce
paternal
action,
alleging that neither the mother nor the legal father were fit
to have custody of the children.
The trial court permitted
the paternal grandparents to intervene, and, after a short
trial
at
which
only
the
legal
father
and
the
paternal
grandfather testified, the trial court divorced the mother and
^Former § 26-17-5 was repealed effective January 1, 2009.
See Act No. 2008-376, § 1, Ala. Acts 2008.
2
2080221
the legal father and awarded custody of the children to the
paternal grandparents in a judgment entered on May 2, 2008.
The mother was not present at trial, although her attorney
appeared.
On May 5, 2008, R.D.B. ("the biological father") moved,
pursuant to Rule 24(a), Ala. R. Civ. P., to intervene in the
divorce action and filed a motion seeking to alter, amend, or
vacate the divorce judgment.
The biological father, in his
verified motion, alleged that he was the biological father of
D.A.C. as established by the results of a DNA test; that the
mother, the legal father, and the paternal grandparents knew
that he was the biological father of D.A.C; and that, since
late October 2007, D.A.C. had been in the physical custody of
the biological father and the children's maternal grandmother
because, in recognition of the biological father's status as
D.A.C.'s biological father, the legal father and the paternal
grandparents had relinquished physical custody of D.A.C. to
the biological father.
which
the
trial
court
After a hearing on June 16, 2008, at
entertained
only
the
arguments
of
counsel, the trial court denied the biological father's motion
to intervene.
In its June 18, 2008, judgment, the trial court
3
2080221
stated that it had lost jurisdiction over the case because
more than 30 days had elapsed since the entry of the judgment
and no party to the case had filed a postjudgment motion to
extend the trial court's jurisdiction past the expiration of
the 30-day period.
See Pierce v. American Gen. Fin., Inc.,
991 So. 2d 212, 215 (Ala. 2008) (noting that a trial court, in
the absence of the filing of a timely postjudgment motion,
loses jurisdiction
to amend its judgment after
30 days);
Henderson v. Koveleski, 717 So. 2d 803, 806 (Ala. Civ. App.
1998) (noting that "a trial court generally loses jurisdiction
to amend its judgment 30 days after the entry of judgment");
see also Rule 4(a) (3), Ala. R. App. P. ("The filing of a postjudgment motion pursuant to Rules 50, 52, 55 or 59 of the
Alabama Rules of Civil Procedure ... shall suspend the running
of the time for filing a notice of appeal.") . The biological
father
filed
a
postjudgment
motion
on
July
18,
2008,
challenging the trial court's order denying the motion to
intervene, which was denied by operation of law on October 16,
2008.
See Rule 59.1, Ala. R. Civ. P.
The biological father
filed his notice of appeal on November 21, 2008.
2080221
The paternal grandparents have filed a motion to dismiss
the biological father's appeal.
that
the biological
father's
In their motion, they argue
appeal
is untimely because,
instead of filing an appeal within 42 days of the entry of the
June 18, 2008, judgment, the biological father filed a second
postjudgment motion directed to the June 18, 2008, judgment,
which they contend is a successive postjudgment motion that
does not toll the time for taking an appeal.
We agree that,
generally, a trial court lacks jurisdiction to entertain a
successive postjudgment motion requesting the same or similar
relief or requesting reconsideration
of the trial court's
denial of the original postjudgment motion.
See, e.g., Hudson
V. Hudson, 963 So. 2d 92, 94 (Ala. Civ. App. 2007); Ollis v.
Ollis, 636 So. 2d 458, 459 (Ala. Civ. App. 1994); and Gold
Kist, Inc. V. Griffin, 659 So. 2d 626, 627 (Ala. Civ. App.
1994) ("Successive post-judgment motions by the same party,
seeking essentially the same relief, are not allowed.").
However,
arguing
that
the paternal
the
grandparents
are
incorrect
successive-postjudgment-motion
applies in the present case.
in
principle
The June 18, 2008, judgment
denying the biological father's motion to intervene was not
2080221
the mere denial of a postjudgment motion directed to the May
2, 2008, divorce and custody judgment.
Instead, that judgment
was a judgment directed to the substantive question of the
biological
Thus,
the
father's
right
biological
to
father
intervene
was
under Rule
permitted
to
24(a).
file
a
postjudgment motion challenging the denial of his right to
intervene, and his appeal, filed within 42 days of the denial
of his postjudgment motion by operation of law, is timely.
See Alabama Fed. Sav. & Loan Ass'n v. Howard, 534 So. 2d 609,
611-12 (Ala. 1988) (explaining in the procedural history of
the case that Alabama Federal had moved to intervene in an
action, that its motion had been denied, that it had filed a
postjudgment motion directed to the order denying its motion
to intervene, which had been denied by operation of law, after
which it had appealed).
Turning now to the merits of the appeal, we will first
address the trial court's erroneous conclusion that it lacked
jurisdiction to consider the biological father's motion to
intervene.
The fact that a motion to intervene is filed after
the entry of a judgment does not automatically prevent its
being considered and granted by the trial court.
Lesnick v.
2080221
Lesnick, 577 So. 2d 856, 858
(Ala. 1991) .
As our supreme
court explained in Lesnick,
"Rule 24, [Ala.] R. Civ.
pertinent part, as follows:
P.,
provides,
in
"'(a) Intervention of Right. Upon
timely
application,
anyone
shall
be
permitted to intervene in an action: (1)
when a statute confers an unconditional
right to intervene; or
(2) when the
applicant claims an interest relating to
the property or transaction which is the
subject of the action and he is so situated
that the disposition of the action may as
a practical matter impair or impede his
ability to protect that interest, unless
the applicant's interest is adequately
represented by existing parties.'
"(Emphasis added.) Timeliness is the first condition
that must be satisfied in order to intervene. NAACP
V. New York, 413 U.S. 345, 365, 93 S. Ct. 2591,
2603, 37 L. Ed. 2d 648 (1973). But, because the rule
itself is silent as to what constitutes a 'timely
application,' the determination of timeliness has
historically been a matter committed to the sound
discretion of the trial court, Randolph County v.
Thompson, 502 So. 2d 357, 364 (Ala. 1987), and the
trial court's ruling on timeliness will not be
disturbed on review unless the court abused its
discretion. United States v. Jefferson County, 720
F.2d 1511 (11th Cir. 1983); United States v.
Allegheny-Ludlum Indus., Inc., 553 F.2d 451, 453
(5th Cir. 1977), cert, denied, 435 U.S. 914, 98 S.
Ct. 1467, 55 L. Ed. 2d 505 (1978) . If the rights of
the existing parties to the litigation would not be
prejudiced, and if the intervention would not
substantially interfere with the court's orderly
processes, 'the mere fact that judgment has already
been entered should not by itself require the denial
7
2080221
of an application for intervention.' Randolph County
V. Thompson, supra, at 365."
Lesnick, 577 So. 2d at 858 (footnote omitted) (second emphasis
added).
In Lesnick, the sons of the deceased ward of a guardian
moved
to
intervene
guardianship.
in
the
Id. at 857.
final
settlement
of
the
Their motion was made 70 days
after the entry of the judgment approving the final settlement
and discharging the guardian.
Id. Our supreme court reviewed
the propriety of the trial court's grant of the postjudgment
motion to intervene by first considering whether the sons had
presented, under Rule 60(b), Ala. R. Civ. P., a ground to
relieve them from the effects of the judgment and whether they
had filed that motion within the time permitted by the rule;
because the sons had demonstrated a ground for relief from the
judgment and had filed their motion within the four-month time
limitation of Rule 60(b), the supreme court affirmed the trial
court's grant of the motion to intervene.
Id. at 858.
The biological father filed his motion only days after
the entry of the judgment awarding custody to the paternal
grandparents;
accompanying
his motion
to
intervene was a
motion to alter, amend, or vacate the judgment.
That motion.
2080221
which would have been a timely motion if the biological father
had been made a party, alleged that D.A.C. had been in his
custody for a six-month period before the entry of the divorce
judgment
awarding
custody
of
D.A.C.
to
the
paternal
grandparents and that the legal father had indicated, through
his counsel and by his actions, that he no longer wished to
persist in the presumption of his parentage under former § 2617-5(a) (1) . Because the biological father would no longer be
barred from establishing his paternity of D.A.C. if the legal
father declined to persist in his presumption of paternity,
see W.D.R. V. H.M., 897 So. 2d 327, 331 (Ala. Civ. App. 2004),
the biological father's motion properly raised an issue as to
the propriety of the custody judgment.
the
trial
court
erred
by
Thus, we conclude that
determining
that
it
lacked
jurisdiction to rule on the biological father's motion to
intervene simply because the 30-day period after the entry of
the judgment had expired without any party to the action
having
filed a postjudgment motion
to continue
the trial
court's jurisdiction.
At the hearing on the biological father's motion, the
paternal grandparents also argued that the biological father
2080221
lacked standing to intervene in the action because the legal
father was the presumed father of D.A.C. under former § 26-175(a) (1) . We have held that a man in the biological father's
position does have a right to intervene in a custody case
concerning a child he claims to have fathered because "'the
matter of custody of a child to which one seeks to establish
paternity
is
a
matter
of
intervention of right,'"
such
interest
as
to
provide
W.D.R., 897 So. 2d at 330 (quoting
Finkenbinder v. Burton, 452 So. 2d 880, 883 (Ala. Civ. App.
1984), superseded by statute as noted in Foster v. Whitley,
564 So. 2d 990, 991 (Ala. Civ. App. 1990)).
However, although
such a man has a right to intervene, as noted above, the
pivotal issue of the biological father's standing to actually
prove his paternity of D.A.C. turns on whether the legal
father persists in his presumption of paternity.
So. 2d at 331.
In W. D. R. , we were presented with the question
of what happens after a man
biological
intervene.
W.D.R., 897
father
in
the
Id. at 330-31.
in the same position
present
case
is
as the
permitted
to
We held, based on a similar
holding in J.O.J, v. R.R., 895 So. 2d 336, 340 (Ala. Civ. App.
2004), that "a man seeking to establish paternity of a child
10
2080221
born during the mother's marriage to another man must be given
the
opportunity
to
establish
standing
in
an
evidentiary
hearing where he and others may present evidence bearing on
whether the presumed father ... persisted in his presumption
of paternity."
The
motion
W.D.R., 897 So. 2d at 331.
allegations
to intervene
in
the
biological
father's
call into question whether
verified
the
legal
father persists in his presumption of paternity. As explained
above, the trial court erred in declining to consider the
biological father's motion to intervene based on its erroneous
conclusion that it lacked jurisdiction to do so.
court,
in
intervene
considering
the
and his motion
biological
father's
to alter, amend,
The trial
motion
or vacate
to
the
divorce and custody judgment, should permit the biological
father and others to present evidence regarding whether the
legal father persists in his presumption of paternity.
MOTION TO DISMISS DENIED; REVERSED AND REMANDED WITH
INSTRUCTIONS.
Thompson,
P.J.,
and
Pittman, Bryan,
concur.
11
and Moore,
JJ.,
