Russell v. Fuqua
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Keone Kaukawele Fuqua ("the father") filed a petition asking that the Probate Court allow him to change the legal name of his daughter from Lyvia Grace Russell to Lyvia Grace Russell-Fuqua. Megan Marie Russell ("the mother") opposed the petition, and she appealed the court's court order granting the father's petition. Upon review, the Supreme Court concluded the probate court had no subject-matter jurisdiction over the parties' name-change dispute, and therefore vacated the order and dismissed the appeal.
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REL: 05/09/2014 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) 2290649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1120957 ____________________ Megan Marie Russell v. Keone Kaukawele Fuqua Appeal from Mobile Probate Court (PR-12-2270) PER CURIAM. Keone Kaukawele Fuqua ("the father") filed a petition in the Mobile Probate Court asking that court to allow him to change the legal name of his daughter from Lyvia Grace Russell to Lyvia Grace Russell-Fuqua. Megan Marie Russell ("the 1120957 mother") opposed the petition, and she appeals from a probate court order granting the relief requested by the father. For the reasons explained below, we conclude that the probate court had no subject-matter jurisdiction over the parties' name-change dispute, and we therefore vacate the order and dismiss the appeal. Facts and Procedural History The mother and the father were married but did not reside in the same home when Lyvia Grace ("the child") was born in April 2010. It is undisputed biological father of the child. that the father is the It is also undisputed that, when the mother provided information for the child's birth certificate, she refused to provide the name of the child's father and did not include the father's surname as part of the child's name. At some point after the child's birth, the father filed a complaint in the Mobile Circuit Court for a divorce. In January 2011, the circuit court entered a judgment granting the father's complaint. As to the child, the divorce judgment awarded the mother custody, awarded the father visitation, and required the father to pay child support. The circuit court's 2 1120957 divorce judgment also stated "that the [mother] is ordered to add the [father's] name to the child's ... birth certificate as the father." Further, the divorce judgment states "that the Court retains jurisdiction in this cause for purpose of making such other or future orders or decrees as to the custody, support and maintenance of the minor child as the Court may deem necessary or as changed conditions require." The mother prepared the documents necessary to add the father's name to the birth certificate, but the father refused to sign the documents because he believed that by signing the documents he was agreeing that the child's legal name would be "Lyvia Grace Russell." Thereafter, the father filed in the probate court the petition to change the child's name. noted above, the mother objected. As Also, we note that there was no dispute between the father and the mother as to the child's legitimacy and that the father's petition to change the child's name did not purport to seek legitimation of the child. After an ore tenus proceeding, the probate court entered an order that states: "The [mother] and acrimonious relationship [the with 3 father] have an each other. The 1120957 testimony presented to the Court reflects that the [mother's] parents (with whom the [mother] and the [child] reside) also have a poor relationship with the [father]. "The [father] is current on payments of child support due since ... the Judgment of Divorce. The [father] exercises his visitation rights vis-Ã -vis the [child]. ".... "... The [father] by action and words seems sincere in having a parental-child relationship with the [child]. The [mother's] demeanor while testifying before the Court calls into question the reliability of [her] testimony and her desire to promote the best interests of the [child]. ".... "Ala. Code 1975, § 26-11-2, provides that the father of a bastard child may seek to legitimate it and render the child capable of inheriting the father's estate. This statute further provides that after notice is properly served upon the mother of the child, the Court shall conduct a hearing at which all interested parties may present evidence for determination of whether legitimation is in the best interest of the child. "It is undisputed that the [father] is the father of the [child] and [the circuit judge] in the Domestic Relations Case has entered a final, non-appealable order determining the [father] to be the father of the [child]. "Based upon the evidence presented in this cause,1 it is obviously in the [child's] best interests for the Court to permit the [father] to legitimate the [child] and facilitate the [child] being capable of inheriting the [father's] estate. 4 1120957 ".... "[The father's] petition is based upon Ala. Code 1975, § 26-11-3. This statute provides that after notice is properly served upon the mother of the child, the Court shall conduct a hearing at which all interested parties may present evidence for determination of whether the requested name change is in the best interest of the child. _______________ "1Rule 15 of the Alabama Rules of Civil Procedure provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." (Emphasis added.) The probate court's order also states in a footnote that § 26-11-3, Ala. Code 1975, "is the only provision in the Code of Alabama (1975) that facilitates a child's name being changed in an Alabama probate court by the father of the child. Ala. Code 1975, § 12-13-l(b)(10), assigns Alabama probate courts with jurisdiction to change the name of an adult person residing in the jurisdiction of said Alabama probate court. This statute has no application in the instant cause." (Emphasis added.) After reviewing the testimony presented by the parties, the order concludes "that the best interests of the [child] are served with the [child's] surname being 'Russell-Fuqua.'" It then states: 5 1120957 "1. The Motion For Name Change filed by the [father] is GRANTED IN PART AS PROVIDED HEREIN. The [mother's] objection thereto is DENIED. "2. The [father] is DETERMINED to be the father of the [child]. "3. The surname of the [child] shall be Russell-Fuqua and the full name of the [child] is Lyvia Grace Russell-Fuqua. "4. Within 60 days from the date of this Order, the [mother] and [the father] shall execute all appropriate documentation required by the Alabama Center For Health Statistics-Vital Records of the Alabama Department of Public Health to facilitate an amended birth certificate being issued for the [child] consistent with this Order." (Capitalization in original.) The mother appeals from the probate court's order. Analysis Although the parties have not raised the issue of subject-matter jurisdiction, such jurisdiction cannot be waived by the parties and may be raised by this Court ex mero motu. See Ex parte Smith, 438 So. 2d 766, 768 (Ala. 1983); see also, e.g., Blevins v. Hillwood Office Ctr. Owners' Ass'n, 51 So. 3d 317, 322 (Ala. 2010). We review the issue of subject-matter jurisdiction de novo. Solomon v. Liberty Nat'l Life Ins. Co., 953 So. 2d 1211, 1218 (Ala. 2006). 6 1120957 The jurisdiction of our probate courts "'is limited to the matters submitted to [them] by statute.'" AltaPointe Health Sys., Inc. v. Davis, 90 So. 3d 139, 154 (Ala. 2012) (quoting Wallace v. State, 507 So. 2d 466, 468 (Ala. 1987)). As the probate court acknowledges in its order, the legislature has given the probate courts jurisdiction over actions in which an adult requests a name change. Code 1975, § 12-13-1(b)(10).1 See Ala. An adult name change is not at issue here. Chapter 11 of Tile 26 of the Code of Alabama 1975 governs so-called legitimation proceedings, i.e., actions in which a father seeks to legitimate a child as his own. Section 26-11-3, Ala. Code 1975, 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 1 Section 12-13-1(b)(10), Ala. Code 1975, provides: "(b) The probate court shall have original and general jurisdiction over the following matters: ".... "(10) The change of the name of any person residing in their county, upon his filing a declaration in writing, signed by him, stating the name by which he is known and the name to which he wishes it to be changed." 7 1120957 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. ..." In addition to the fact that this Code section is part of the chapter governing legitimation proceedings, it specifically states that the petition is filed "at the time of filing the declaration of legitimation" determination of legitimation." or "subsequent to (Emphasis added.) the "[T]he determination of legitimation" clearly refers to a ruling in the legitimation action. Thus, the probate court's jurisdiction to entertain a petition to change a child's name is derivative of that court's jurisdiction over legitimation actions. It is undisputed that the present dispute does not arise out of a legitimation proceeding. Although § 26-11-3(a) is an affirmative grant of subjectmatter jurisdiction to the probate court when the circumstances described in that Code section are met, that section does nothing to deprive the circuit court of its general equity jurisdiction and, specifically, its jurisdiction over matters within the realm of custody disputes between two parents. As Judge Crawley explained in discussing 8 1120957 § 26-11-3(a) in his dissenting opinion in Clark v. Clark, 682 So. 2d 1051 (Ala. Civ. App. 1006) (plurality opinion):2 "[T]he statute providing for name changes is not exclusive in nature [and] ... the circuit courts have wide discretion in child custody matters and ... the circuit courts have inherent and continuing equity jurisdiction over minor children. Acknowledgment of these principles compels the conclusion that the circuit court does indeed have jurisdiction over the name change of minors under the wide discretion afforded it in child custody matters. ".... "'When equity's jurisdiction is invoked, minor children are wards of the court, and it is the court's duty to guard and protect the interest of its infant wards with scrupulous care.... In the case of divorce of the parents, equity courts have inherent power to protect the welfare of the minor children born of the broken marriage and to make appropriate allowances for them, ... and, having once obtained jurisdiction over the children of divorced parents, the court retains jurisdiction during their infancy.' "Wise v. Watson, 236 So. 2d 681, 684, 286 Ala. 22, 25 (1970) (emphasis added). Additionally, in a case 2 The lead opinion in Clark, concurred in by only one judge other than its author, wrongly construed § 26-11-3(a) as providing that the probate court has jurisdiction to the exclusion of the circuit court over petitions to change the names of minors. 682 So. 2d at 1052. Such a reading of § 2611-3(a) would create a serious problem because § 26-11-3 provides the probate court with authority only in the context of legitimation proceedings. Thus, a legitimate father would have no place to go to seek a change of name for his child. 9 1120957 involving child custody, any matter affecting the child becomes the subject of equity jurisdiction. "... In light of the circuit court's general jurisdiction, described in Ala. Code 1975, § 12 11 30, as well as its history as a court of equity jurisdiction, as provided for in Ala. Code 1975, § 12 11 31, and its child custody jurisdiction under Ala. Code 1975, § 30 3 1, I believe that in this case, the circuit court did have jurisdiction to decide upon the name change of the minor child. When the parents in this case were divorced in 1985, the circuit court attained jurisdiction over the minor child. When the father petitioned the circuit court to change the child's name back to Clark, she was ten, and the circuit court still had jurisdiction over her. The circuit court's jurisdiction over this minor child will continue until she reaches the age of majority. Because the child became a ward of the circuit court, the circuit court has the inherent power to protect her welfare. By acting to settle the dispute between the parents about their child's name, the circuit court simply acted with the appropriate goal of promoting the child's best interest. Since the change of a child's name is a matter affecting the child and within the realm of matters in respect to the custody of the child, that subject is encompassed in the circuit court's equity jurisdiction and within its jurisdiction under § 30 3 1[, Ala. Code 1975]." 682 So. 2d at 1054-55 (Crawley, J., emphasis added; some citations omitted). dissenting) (final See also 682 So. 2d at 1052 (Thigpen, J., dissenting to like effect and discussing the breadth of the circuit court's equity jurisdiction as to custody of children and the issues relating thereto). 10 1120957 Because the probate court lacked jurisdiction in this case, its judgment is void. See Johnson v. Hetzel, 100 So. 3d 1056, 1057 (Ala. 2012) (holding that the failure to satisfy a jurisdictional prerequisite renders a judgment void).3 A void judgment will not support an appeal. Id. It is this Court's obligation to vacate such a judgment and dismiss the appeal. Ex parte Alabama Dep't of Human Res., 999 So. 2d 891, 898 (Ala. 2008). Conclusion Based on the foregoing, the probate court's order is hereby vacated and the appeal dismissed. JUDGMENT VACATED; APPEAL DISMISSED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. 3 The father may still file a petition seeking a change of the child's name with the circuit court, which, as noted in the divorce judgment, has retained jurisdiction as to matters involving the custody of the child. 11
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