Opinion
CL-2023-0259
10-20-2023
A.R. v. C.R.M.
Appeal from Dale Probate Court (21-263)
MOORE, JUDGE.
A.R. ("the mother") appeals from a judgment entered by the Dale Probate Court ("the probate court") denying her Rule 60(b), Ala. R. Civ. P., motion requesting relief from an earlier judgment entered by the probate court granting a petition filed by C.R.M. ("the stepmother") to adopt the mother's child, M.H.M. ("the child"). We reverse the probate court's judgment denying the mother's Rule 60(b) motion.
Procedural History
On October 27, 2021, the stepmother, who is married to the child's father, J.A.M. ("the father"), and is the child's stepmother, filed in the probate court a verified petition to adopt the child. The stepmother asserted in her petition, among other things, that the child had been residing with the father and the stepmother since March 2019; that the father had been awarded sole legal and sole physical custody of the child pursuant to an order entered by the Russell Juvenile Court; and that the whereabouts of the mother were unknown. Also on October 27, 2021, the probate court entered an order directing The Southern Star newspaper to publish notice to the mother of the adoption proceedings for four successive weeks. On March 23, 2022, an affidavit of publication of legal notice was filed in the probate court, indicating that the notice to the mother of the adoption proceedings had been published in The Southern Star newspaper on February 3, 10, 17, and 24, 2022. The probate court entered a final judgment on March 24, 2022, granting the stepmother's petition to adopt the child.
On March 23, 2023, the mother filed a motion, pursuant to Rule 60(b), Ala. R. Civ. P., seeking to set aside the final adoption judgment. The mother asserted, among other things, that the stepmother's allegation that the mother's whereabouts had been unknown was a fraudulent misrepresentation to the probate court and that the mother's counsel had been unable to locate an affidavit of the stepmother in support of her request for serving the mother by publication, which, the mother said, was a requirement set forth in the Alabama Rules of Civil Procedure for obtaining an order granting service by publication. She requested that the adoption judgment be set aside as void. The stepmother's "previous adoption counsel" filed an objection to the mother's Rule 60(b) motion, asserting, among other things, that the mother had provided implied consent to the child's adoption and that the affidavits attached to the mother's Rule 60(b) motion did not support her assertions that the mother's whereabouts were known to the stepmother. On March 30, 2023, the probate court entered a judgment denying the mother's Rule 60(b) motion. The mother filed a timely notice of appeal to this court on April 27, 2023. See J.A. v. C.G.H., [Ms. CL-2022-0927, Mar. 3, 2023] ____ So.3d ____, ____ (Ala. Civ. App. 2023) ("The time for filing a timely notice of appeal from the denial of a Rule 60(b)[, Ala. R. Civ. P.,] motion that seeks relief from an adoption judgment is 42 days.").
We note that Rule 4.3(d)(1), Ala. R. Civ. P., which applies in probate-court proceedings, see Ala. Code 1975, § 26-10A-17(c)(1) (providing that service in adoption proceedings shall be in accordance with the Alabama Rules of Civil Procedure), provides, in pertinent part, that, before service by publication can be made in an action in which the residence of a defendant is unknown, an affidavit of a party or the party's counsel must be filed with the court averring that service of summons cannot be made because the residence is unknown to the affiant and cannot with reasonable diligence be ascertained.
Analysis
The mother argues on appeal that the probate court erred in denying her Rule 60(b) motion without first conducting a hearing and that the stepmother's failure to properly serve the mother with notice of the adoption proceedings deprived the probate court of personal jurisdiction over the mother such that the final judgment of adoption is void. We find the first issue raised by the mother to be dispositive of the appeal.
The mother cites M.M. v. K.J.Z., 249 So.3d 1144 (Ala. Civ. App. 2017), in support of her argument that the probate court erred by not conducting a hearing on her Rule 60(b) motion. In M.M., this court outlined our applicable standard of review as follows:
"Although a court is not required to hold a hearing on a Rule 60(b)[, Ala. R. Civ. P.,] motion before ruling on that motion, especially where the motion 'clearly is without substance and merely an attempt to burden the court with frivolous contentions,' the failure to hold a hearing may be an abuse of discretion under certain circumstances. Waldron v. Fikes, 378 So.2d 1138, 1139 (Ala. 1979). In Snooky Hairrell Volkswagen, Inc. v. Speer, 689 So.2d 51, 54 (Ala. 1997), our supreme court explained that when the movant makes a showing that, if true, would be a basis for relief under Rule 60(b), the movant is entitled to a hearing on a Rule 60(b) motion. Thus, where the factual allegations made in support of the motion would, if true, support relief under Rule 60(b), a hearing should be held on the Rule 60(b) motion. Speer, 689 So.2d at 54 ...."
In M.M., M.M., the father of the children at issue in that case, filed Rule 60(b) motions requesting that the Jefferson Probate Court set aside separate judgments entered by that court granting separate petitions filed by K.J.Z. and E.M.Z. to adopt M.M.'s two children. Id. at 1145. M.M. argued in his Rule 60(b) motions, among other things, that he had not received notice of the pending adoptions and that K.J.Z. and E.M.Z. had had a means of contacting him to determine his whereabouts such that notice by publication had been improper. Id. at 1147. The Jefferson Probate Court, without conducting a hearing, dismissed M.M.'s Rule 60(b) motions because, it said, M.M. had been properly served by publication. M.M. appealed to this court.
In reversing the judgments, this court, after determining that M.M. had filed timely Rule 60(b)(4) motions, held that the allegations in M.M.'s motions, "if proven, would support a determination that [M.M.'s] due-process rights were violated, that any consent implied by his failure to appear in the adoption actions was invalid, and that he, therefore, should be permitted to appear in the adoption actions and to contest the adoptions." Id. at 1151. Thus, we held that the failure by the Jefferson Probate Court to conduct a hearing on M.M.'s allegations in the Rule 60(b) motions regarding service of process was reversible error. We reversed the judgments dismissing those motions and remanded the cases to the Jefferson Probate Court with instructions "to hold a hearing on [M.M.]'s allegations regarding service in the Rule 60(b) motions, to determine, based on the evidence adduced at that hearing, whether service on [M.M.] by publication was proper in the adoption actions, and to conduct further proceedings in accordance with that finding." Id.
In the present case, like in M.M., the mother asserted in her Rule 60(b) motion, and presented affidavit testimony in support thereof, that she had not received notice of the pending adoption, that the father and the stepmother had known her address and whereabouts at all times, and that the mother could present proof to the probate court of contact she had had with the father after the filing of the adoption petition, including text messages. Like in M.M., we conclude that the mother has timely filed a Rule 60(b)(4) motion on the basis that the adoption judgment was void for lack of due process. See M.M., 349 So.3d at 1148. We also conclude that the allegations asserted by the mother in her Rule 60(b) motion, if proven, would support a determination that her due-process rights were violated, that any consent implied by her failure to appear in the adoption action was invalid, and that she should be permitted to appear in the adoption action and to contest the adoption. Thus, in accordance with M.M., we hold that the probate court erred by failing to conduct a hearing on the mother's Rule 60(b) motion.
We reject the stepmother's argument that the mother waived a right to a hearing on her Rule 60(b) motion by failing to expressly request a hearing. First, in her affidavit, the mother specifically offered to present evidence to the probate court to support her assertions that the father and the stepmother knew of her whereabouts when they requested that she be served by publication. The probate court should have considered that offer as a request for an evidentiary hearing. Second, the caselaw on point does not require a movant to explicitly request an evidentiary hearing on a Rule 60(b) motion. In Giles v. Giles, 404 So.2d 649, 651 (Ala. 1981), our supreme court reversed a judgment denying a Rule 60(b)(6) motion and remanded the case for the trial court in that case to conduct a hearing on the motion, although no express request for a hearing had been made in the motion itself. See 404 So.2d at 650-51. The supreme court held in Giles that, because the Rule 60(b)(6) motion might have merit, the movant should have been given the opportunity to present evidence at a hearing to sustain the allegations in the motion that the summary judgment that had been entered against the movant should be set aside. Although this court did not cite Giles in M.M., this court followed its reasoning by concluding that M.M. was entitled to a hearing on his Rule 60(b)(4) motion because it appeared to have merit, even though, in M.M., we did not mention whether M.M. had requested a hearing on the motion. To reiterate, binding Alabama caselaw holds that, when a movant makes a showing that, if true, would warrant relief from a judgment under Rule 60(b), the movant is entitled to a hearing on the Rule 60(b) motion. See Snooky Hairrell Volkswagen, Inc. v. Speer, 689 So.2d 51, 54 (Ala. 1997).
We acknowledge that, in Kovakas v. Kovakas, 12 So.3d 693, 702 (Ala. Civ. App. 2008), this court stated that a trial court may adjudicate a Rule 60(b) motion without conducting a hearing if a party fails to request a hearing in the motion. That statement was dicta because we had already determined that the Rule 60(b) motion in that case lacked merit. Moreover, Kovakas relied solely on Maples v. Maples, 599 So.2d 625, 626 (Ala. Civ. App. 1992), and Kilpatrick v. Kilpatrick, 678 So.2d 1185, 1186 (Ala. Civ. App. 1996), which hold that a court may dispose of a postjudgment motion filed pursuant to Rule 59. Ala. R. Civ. P., without conducting a hearing when no hearing has been requested. Maples and Kirkpatrick do not address the propriety of denying a Rule 60(b) motion without conducting a hearing, which is governed by the standard set forth in Giles, Speer, and M.M. To the extent that Kovakas suggests otherwise, it is hereby overruled.
In the present case, like in Giles and M.M., the mother presented arguments and evidence in support of her Rule 60(b) motion that, if proven, would render the probate court's adoption judgment void. Like in Giles and M.M., we conclude from the record on appeal that the probate court should conduct an evidentiary hearing to determine whether the mother's motion has merit. We therefore reverse the probate court's judgment denying the mother's Rule 60(b) motion, and we remand the case to the probate court with instructions that it hold a hearing on the mother's allegations regarding service in her Rule 60(b) motion to determine, based on the evidence adduced at that hearing, whether service on the mother by publication was proper in the adoption action and to conduct further proceedings in accordance with its determination thereon.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.