A.B. v. T.M.

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Rel: May 3, 2019 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) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2018-2019 _________________________ 2180066 _________________________ A.B. v. T.M. Appeal from Houston Circuit Court (DR-17-214) THOMPSON, Presiding Judge. On May 12, 2014, the Houston County Department of Human Resources ("DHR"), on behalf of T.M. ("the mother"), filed a complaint in the Houston Juvenile Court ("the juvenile court") seeking to domesticate a November 15, 2013, judgment of the 2180066 Circuit Court of Montgomery County, Maryland ("the Maryland court"). The Maryland court's judgment awarded the mother custody of the minor child born of her relationship with A.B. ("the father"), ordered the father to pay child support, and awarded the mother a $2,598 judgment on the father's childsupport arrearage. Also on May 12, 2014, DHR filed, on behalf of the mother, a petition seeking to have the father held in contempt for his failure to pay child support pursuant to the Maryland court's November 15, 2013, judgment. On February 3, 2015, the juvenile court entered an order domesticating judgment. the Maryland court's November 15, 2013, On February 4, 2015, the juvenile court entered an order finding the father in contempt for failure to pay child support, and it scheduled a hearing to determine the amount of the child-support arrearage. On December 8, 2015, the juvenile court entered a judgment on the contempt petition, determining that the father was $13,423 in arrears in his child-support obligation and awarding the mother a judgment in that amount. The issue of the father's alleged contempt for failure to pay child support and the enforcement of that obligation 2 2180066 continued to be litigated in the juvenile court after the entry of the December 8, 2015, judgment. On August 25, 2016, the juvenile court entered an order stating that the father had failed to appear at a scheduled show-cause hearing, and it ordered that a writ of arrest for the father be issued. The father filed a petition for a writ of mandamus in this court with regard to the August 25, 2016, order and another order that had been entered in April 2016. On September 29, 2016, this court dismissed the petition as untimely insofar as it pertained to the April 2016 order and denied the petition with regard to the August 25, 2016, order. On September 15, 2016, the father filed in the juvenile court a Rule 60(b), Ala. R. Civ. P., motion for relief from judgment. The father sought relief from the February 3, 2015, judgment domesticating the Maryland court's November 15, 2013, judgment and from the December 8, 2015, judgment on the contempt petition. The juvenile court scheduled a hearing on that motion for June 27, 2017. On June 27, 2017, the juvenile court entered a judgment in which it noted that the father had failed to appear at the scheduled hearing, and it denied the father's Rule 60(b) 3 2180066 motion. We note that, in that judgment, the juvenile court also ordered that a writ of arrest be issued for the father based on information it received at the hearing concerning the father's continued failure to pay child support. The juvenile court did not certify that the record was adequate for an appeal to this court and did not certify that only questions of law are involved, and the father filed a notice of appeal to the Houston Circuit Court ("the trial court") on July 10, 2017. See M.C. v. L.J.H., 868 So. 2d 465, 467 (Ala. Civ. App. 2003) (citing Rule 28(A)(1), Ala. R. Juv. P., and holding that, in the absence of a certification of the record as being adequate for an appeal to this court or of a certification that only questions of law are involved, the appeal of a denial of a Rule 60(b) motion filed in the juvenile court is to the circuit court); see also Terry v. Frisbee, 404 So. 2d 345, 346 (Ala. Civ. App. 1981) ("[T]he denial of a [R]ule 60(b) motion by a district court is a final order or judgment, which, pursuant to § 12-12-71, [Ala. Code 1975,] must on its face be appealed to the circuit court" unless the exceptions in § 12-12-71 apply). Given the posture of this case, the 4 2180066 father properly appealed the denial of his Rule 60(b) motion to the trial court. The trial court designated the appeal to that court from the juvenile court's June 27, 2017, judgment as case number DR-17-214. In the trial court, on October 5, 2017, the father filed a document titled "sworn motion for judgment" that, in substance, elaborated on the arguments asserted in his September 15, 2016, Rule 60(b) motion. On September 21, 2018, the trial court entered a judgment in which it noted that its review of the matter was confined to determining whether the juvenile court had erred in denying the father's Rule 60(b) motion. This court has explained: "The appeal to the circuit court was from the district court's denial of the Rule 60(b) motion. Such an appeal is for trial de novo. Walker v. Eubanks, 424 So. 2d 631 (Ala. Civ. App. 1982). In other words, the de novo appeal is as if the district court's judgment denying the Rule 60(b) motion had never been entered. The circuit court views the petition and its supporting material on their merits as to whether relief should be granted under Rule 60(b). Walker." Evans v. Sharp, 617 So. 2d 1039, 1040 (Ala. Civ. App. 1993). See also Ruzic v. State ex rel. Thornton, 866 So. 2d 564, 568 n. 4 (Ala. Civ. App. 2003), abrogated on other grounds by F.G. v. State Dep't of Human Res., 988 So. 2d 555, 570 n. 4 (Ala. 5 2180066 Civ. App. 20017) ("When an appeal is properly taken from the district court's ruling on a motion for relief from a judgment pursuant to Rule 60(b), Ala. R. Civ. P., the circuit court's function is simply to review the motion 'and its supporting material on their merits [so] as to [determine] whether relief should be granted under Rule 60(b).'" (quoting Evans v. Sharp, 617 So. 2d at 1040)). The trial court determined that there was no basis for relief available to the father under Rule 60(b), and it "denied" that motion, i.e., it affirmed the judgment of the juvenile court that had denied the father's Rule 60(b) motion. On September 27, 2018, the father filed a purported postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P. On that same date, the trial court entered an order purporting to deny the September 27, 2018, motion. The father filed a notice of appeal to this court on October 9, 2018. Neither party has addressed this court's jurisdiction to consider this appeal. However, jurisdictional issues are of such significance that this court takes notice of them, even ex mero motu. Heaston v. Nabors, 889 So. 2d 588, 590 (Ala. Civ. App. 2004). 6 2180066 This case designated was as a initiated "CS" action as a in child-support the juvenile action court. Accordingly, the Rules of Juvenile Procedure apply to govern the action. A.F. v. S.R., 209 So. 3d 511, 514 (Ala. Civ. App. 2016); J.J. v. R.R., 159 So. 3d 84, 85 (Ala. Civ. App. 2014); and M.C. v. L.J.H., supra. In an appeal to the circuit court of a juvenile-court judgment, the Rules of Juvenile Procedure apply. Rule 1(B), Ala. R. Juv. P.; J.F.M. v. C.W.B., 72 So. 3d 663, 665 (Ala. Civ. App. 2011); W.C.R. v. D.A.L., 18 So. 3d 420, 422 (Ala. Civ. App. 2009); and M.C. v. L.J.H., supra. The father had 14 days, or until October 5, 2018, to appeal the trial court's September 21, 2018, judgment denying his Rule 60(b) motion. Rule 28(C), Ala. R. Juv. P. The father filed his notice of appeal on October 9, 2018. The father filed in the trial court a purported postjudgment motion on September 27, 2018, asking the trial court to reconsider its denial of his Rule 60(b) motion. However, "'"[a]fter a trial court has denied a postjudgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to 'reconsider' or otherwise review its order denying the Rule 60(b) motion, and such a successive postjudgment motion does not 7 2180066 suspend the running of the time for filing a notice of appeal."'" Wright v. City of Mobile, 192 So. 3d 7, 8 (Ala. Civ. App. 2015) (quoting Adkins v. Adkins, 61 So. 3d 1071, 1075 (Ala. Civ. App. 2010), quoting in turn Ex parte Keith, 771 So. 2d 1018, 1022 (Ala. 1998)). See also M.E.W. v. J.W., 142 So. 3d 1168, 1173 (Ala. Civ. App. 2013) (same). Thus, the trial court lacked jurisdiction to consider the father's purported September 27, 2018, postjudgment motion, and that motion did not extend the time for taking a timely appeal of the September 21, 2018, judgment. Wright, supra. The father's October 9, 2018, notice of appeal was filed more than 14 days after the entry of the September 21, 2018, judgment. Accordingly, that notice of appeal was untimely filed, and this court lacks jurisdiction to consider this appeal. Rule 2(a)(1), Ala. R. App. P. ("An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court."). APPEAL DISMISSED. Moore, Donaldson, Edwards, and Hanson, JJ., concur. 8

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