Opinion
2170982
03-15-2019
E.L. v. C.P.
Kris R. Patton of Akridge & Balch, P.C., Auburn, for appellant. Kristy M. Kirkland, Dothan, for appellee.
Kris R. Patton of Akridge & Balch, P.C., Auburn, for appellant.
Kristy M. Kirkland, Dothan, for appellee.
DONALDSON, Judge.
E.L. ("the father") appeals from a judgment of the Houston Circuit Court ("the trial court") that adjudicates his paternity of E.N.L.P., places sole physical custody of E.N.L.P. with C.P. ("the mother"), provides the father with visitation, and orders him to pay child support. In his complaint, the father sought an adjudication of those matters regarding E.N.L.P. as well as another child, J.T.P.G. The judgment, however, reserved those issues pertaining to J.T.P.G. pending genetic testing to determine whether the father is the biological father of J.T.P.G. As a result, the father has appealed from a nonfinal judgment, and we must dismiss the appeal.
Facts and Procedural History
On June 19, 2017, the father filed a complaint against the mother in the Lee Circuit Court. In the complaint, the father sought an adjudication of paternity of E.N.L.P. and the mother's unborn child. Regarding the unborn child, the father sought genetic testing to determine their biological relationship. The father also sought sole physical custody of both of the children, visitation for the mother, and child support from the mother. On July 20, 2017, the mother gave birth to J.T.P.G., the unborn child referenced in the father's complaint.
Section 26-17-611, Ala. Code 1975, provides that "[a] proceeding to determine parentage may be commenced before the birth of the child, but may not be concluded until after the birth of the child."
On July 19, 2017, the mother filed a motion in the Lee Circuit Court requesting a change of venue to Houston County. On the same date, the Lee Circuit Court entered an order granting the motion. The trial court received the materials for the paternity action and docketed the paternity action as case number DR-17-233.00 ("the .00 case").
On July 20, 2017, the father filed in the Lee Circuit Court a motion to reconsider the change of venue. On August 4, 2017, the Lee Circuit Court entered an order granting the father's motion and purporting to set aside its July 19, 2017, order. In the August 4, 2017, order, the Lee Circuit Court noted that the change of venue had been completed and that a change of venue back to Lee County might require an order from the trial court.
On August 4, 2017, the father filed a motion in the trial court seeking to change the venue of the paternity action back to Lee County. On August 7, 2017, the trial court entered an order granting the father's motion. Proceedings in the paternity action purported to continue in the Lee Circuit Court.
On September 5, 2017, the mother filed a petition for a writ of mandamus challenging the authority of the Lee Circuit Court to have entered any orders after the entry of its July 19, 2017, order changing the venue of the action, including its August 4, 2017, order purporting to set aside the July 19, 2017, order, and also challenging the authority of the trial court to enter its August 7, 2017, order purporting to change the venue of the paternity action to Lee County.
On September 29, 2017, the Lee Circuit Court entered an order, stating that it had conducted a hearing on September 27, 2017, that dealt primarily with the issue of venue. In its order, the Lee Circuit Court determined that Houston County was the more proper venue for the paternity action. The Lee Circuit Court purported to order that the venue be changed to Houston County or, in the alternative, to withdraw its August 4, 2017, order setting aside the change of venue to Houston County so that the matter would remain there. The record indicates that the materials regarding the proceedings in the Lee Circuit Court were again transferred to Houston County. The trial court then docketed another case, numbered DR-17-233.01 ("the .01 case").
On October 20, 2017, this court granted the mother's mandamus petition and issued a writ directing the Lee Circuit Court to set aside all orders entered in the paternity action after the entry of its July 19, 2017, order and directing the trial court to set aside its August 7, 2017, order. Ex parte C.P., 253 So.3d 401 (Ala. Civ. App. 2017). On October 25, 2017, the trial court entered an order setting aside its August 7, 2017, order.
On March 22, 2018, a trial was held on the father's complaint, as well as pending motions. On April 11, 2018, the trial court entered an order in the .00 case. In the order, the trial court determined, among other findings, that the father is the father of E.N.L.P. Regarding E.N.L.P., the trial court ordered the father to pay $598.12 a month in child support, granted the parties joint legal custody, and placed sole physical custody with the mother subject to the father's visitation. The trial court further stated: "The issue of paternity of the minor child J.T.P.G. born July 20, 2017, is reserved pending genetic testing as are the related issues of custody, visitation and child support related to said child."
Until the entry of the April 11, 2018, order, the parties' pleadings and the trial court's orders had been filed in the .01 case.
On May 2, 2018, the father filed in the .01 case a motion to alter, amend, or vacate the April 11, 2018, order. On May 11, 2018, the mother filed in the .00 case a motion to alter, amend, or vacate the April 11, 2018, order. On June 20, 2018, the trial court entered an order in the .00 case denying the mother's postjudgment motion and an order in the .01 case denying the father's postjudgment motion.
On July 27, 2018, the father filed in the .00 case a notice of appeal to this court.
We note that the .00 case and the .01 case pertain to the same proceedings initiated by the father's complaint. Section 6-5-440, Ala. Code 1975, provides:
"No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times."
The record, however, does not indicate that the issue was raised in the trial court.
Discussion
"A final judgment is one that completely adjudicates all matters in controversy between all the parties." Eubanks v. McCollum, 828 So.2d 935, 937 (Ala. Civ. App. 2002).
" ‘ "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." ’
Raybon v. Hall, 17 So.3d 673, 675 (Ala. Civ. App. 2009) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987) ). ‘ "The question whether an order appealed from is final is jurisdictional, and the reviewing court, on a determination that the order is not final, has a duty to dismiss the case on its own motion." ’ Hinson v. Hinson, 745 So.2d 280, 281 (Ala. Civ. App. 1999) (quoting Powell v. Powell, 718 So.2d 80, 82 (Ala. Civ. App. 1998) ).
"The appellate jurisdiction of this court extends only to final judgments. See § 12–22–2, Ala. Code 1975.
" ‘An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. See Stone v. Haley, 812 So.2d 1245 (Ala. Civ. App. 2001). In such an instance, an appeal may be had "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." See Rule 54(b), Ala. R. Civ. P.; Baker v. Johnson, 448 So.2d 355, 358 (Ala. 1984).’
" Eubanks v. McCollum, 828 So.2d 935, 937 (Ala. Civ. App. 2002)."
Nicke v. Minter, 195 So.3d 274, 278 (Ala. Civ. App. 2015).
In his complaint, the father sought determinations of paternity, custody, visitation, and child support regarding both E.N.L.P. and J.T.P.G. Regarding J.T.P.G., the April 11, 2018, order reserved the issue of paternity, as well as the issues of custody, visitation, and child support, pending genetic testing to determine whether the father is the biological father of J.T.P.G. The April 11, 2018, order does not contain a final determination regarding any of the matters regarding J.T.P.G. that the father had requested to be adjudicated in his complaint. Therefore, the April 11, 2018, order does not completely adjudicate all matters in controversy between the parties, and we must dismiss the appeal. See N.H. v. T.A.P., 963 So.2d 97, 99 (Ala. Civ. App. 2007) ("The reviewing court, on a determination that a judgment is not final, has a duty to dismiss the case.").
We note that the trial court did not direct the entry of the April 11, 2018, order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., and we express no opinion as to whether a Rule 54(b) certification of the April 11, 2018, order would have been proper.
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APPEAL DISMISSED.
Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur.