Opinion
2180782
02-07-2020
S.J.H. v. N.T.S.
Elizabeth Clark Bone, Birmingham, for appellant. Submitted on appellant's brief only.
Elizabeth Clark Bone, Birmingham, for appellant.
Submitted on appellant's brief only.
EDWARDS, Judge.
In June 2018, the Jefferson County Department of Human Resources ("DHR"), on behalf of S.J.H. ("the mother"), filed a paternity and child-support complaint in the Jefferson Juvenile Court ("the juvenile court"). In that complaint, DHR alleged that the mother had received government aid for the benefit of K.T.S. ("the child") and sought to have N.T.S. ("the father") declared to be the child's father and ordered to pay child support. See Ala. Code 1975, § 38-10-7(a). The complaint also requested that the father be ordered to pay retroactive child support for the two years preceding the filing of the complaint and that the mother and/or the father be required to name the child on any health-insurance policy or coverage either had in force. The juvenile court set the matter for a trial to be held on July 26, 2018, before the juvenile-court referee. The mother failed to appear at the July 26, 2018, trial, and the referee entered an order requiring paternity testing and setting a subsequent trial for August 15, 2018; the order was ratified by the juvenile-court judge. On August 15, 2018, the mother again failed to appear for the trial.
A parent who receives government aid agrees by accepting that aid to assign his or her right to child support owed to him or her to the Department of Human Resources. See Johns v. Johns, 500 So. 2d 1160, 1160 (Ala. Civ. App. 1986) (stating that "recipients of aid to families with dependent children are deemed to have assigned to [the Department of Human Resources] the right to any child support owed to or for any child up to the amount of aid paid by [the Department of Human Resources]" pursuant to the provisions of the Child Support Act of 1979, codified at Ala. Code 1975, § 38-10-1 et seq. ).
"As a condition of eligibility for aid, each recipient of aid to families with dependent children shall be deemed, by accepting aid, to have made an assignment to the [D]epartment [of Human Resources] of the right to any support owed up to the amount of aid paid by the department to the recipient in her own behalf or in behalf of any other person for whom the recipient is receiving aid.
"The department shall be subrogated to the right of such child or recipients or the person having custody to collect and receive all child support payments and to initiate any support action existing now or in the future under the laws of Alabama."
Ala. Code 1975, § 38-10-4.
Section 38-10-7(a) reads, in pertinent part:
"Whenever anyone owing the obligation of support has failed to provide support, and application is made to the department for support services as may be provided pursuant to the requirements of Title IV-D or for aid, the department, and including the district attorney when providing services for the department, may take appropriate action under this article, or any other appropriate state and federal statutes, to assure that the responsible person or persons owing the obligation of support provide support, including, but not limited to, civil or criminal actions to determine parentage or to establish, modify, or enforce support obligations...."
(Emphasis added.) Furthermore, DHR's counsel was required to represent only the interest of the State in the establishment of child support. Ala. Code 1975, § 38-10-7.1.
"Any district attorney or attorney approved or appointed by the Attorney General initiating legal proceedings at the request of the Department of Human Resources to establish or enforce child support, spousal support, medical support, and/or any other support services pursuant to the provisions of Title IV-D of the Social Security Act and the laws of this state shall represent the State of Alabama, Department of Human Resources, exclusively in said proceedings. No attorney-client relationship shall exist between the IV-D attorney and any applicant or recipient of the agency's support enforcement services, without regard to the style of the case in which legal proceedings are initiated. Said attorney representing the state in an IV-D case is only authorized to appear and prosecute and/or defend issues of support and cannot in an IV-D case address or provide representation to the IV-D client on any other or ancillary issues raised or presented in that action. ..."
§ 38-10-7.1 (emphasis added).
After conducting the August 15, 2018, trial, the referee entered an order declaring the father's paternity of the child, awarding the parents joint legal custody of the child, awarding the father sole physical custody of the child, awarding the mother visitation, and reserving the issue of child support. That order did not address DHR's request for retroactive child support for the two years preceding the filing of its complaint or its request that the mother and/or the father be required to name the child on his or her health insurance. The August 15, 2018, order was also ratified by the juvenile-court judge.
On August 16, 2018, the mother filed, pro se, a motion seeking reconsideration of the August 15, 2018, order insofar as it awarded custody of the child to the father. She contended in that motion that she had not been served with notice of the trial dates scheduled by the referee. The mother's motion was scheduled for a hearing to be held before the referee on August 24, 2018. After the hearing, the referee entered an order on August 24, 2018, recognizing that counsel for DHR and both parties had appeared, setting aside the August 15, 2018, order, "reentering" the provisions of that order as a pendente lite order, and setting the case for a trial to be held on September 28, 2018. That order was ratified by the juvenile-court judge later the same day.
On September 18, 2018, the mother, who was then represented by counsel, filed an objection to the referee's hearing the action. See Ala. Code 1975, § 12-15-106(b)(4) (indicating that a juvenile court may refer matters to a referee unless "[a] party objects to a hearing being held by a referee"). On September 19, 2018, the juvenile court entered an order indicating that the mother's objection had come too late and that it should have been "styled as an appeal from the referee more so than an objection." Thus, the case proceeded before the referee.
On September 28, 2018, the mother filed what she styled as a "Motion to Permanently Set Aside the Order of 15 August 2018." In that motion, the mother indicated that the August 15, 2018, order became the pendente lite order in the matter after her motion for reconsideration had been granted. However, she requested that the August 15, 2018, order be set aside because, she averred, she had not had notice of the August 15, 2018, trial and because, she stated, she was the best person to have custody of the child. On the same date, an order was entered setting the action for a trial to be held before the referee on November 1, 2018; that order was ratified by the juvenile-court judge on September 29, 2018. On September 28, 2019, the juvenile court entered an order indicating that the mother's September 28, 2018, motion would be "subsumed into the November 1, 2018 trial." According to an October 31, 2018, order of the referee, which order was not ratified by the juvenile-court judge, the November 1, 2018, trial was continued to November 28, 2018, based upon a joint motion to continue filed by the parties that does not appear in the record.
On December 1, 2018, the mother filed another motion entitled "Motion to Permanently Set Aside the Order of 15 August 2018." That motion, in contrast to the September 28, 2018, motion, argued only that the mother had had no notice of the August 15, 2018, trial. The mother again requested that the juvenile court enter a new order awarding her custody of the child. The juvenile court entered an order on December 4, 2018, stating that the mother's December 1, 2018, motion would be heard at a trial to be held on December 27, 2018. The order also stated that the juvenile court had extended the time to "hear" the mother's motion "pursuant to Rule 59.1, Ala. R. Civ. P."
We note that the mother's September 28, 2018, motion and her December 1, 2018, motion were filed well more than 14 days after the entry of the August 15, 2018, order to which the motions were directed. Thus, they would have been untimely under Rule 1(B), Ala. R. Juv. P. (requiring postjudgment motions filed in a juvenile court to be filed within 14 days of the entry of the judgment to which they are directed), or Rule 59(dc), Ala. R. Civ. P. (requiring postjudgment motions filed in district court to be filed within 14 days of the entry of the judgment to which they are directed). However, the August 15, 2018, order, if it had been a final judgment, had been set aside and supplanted by the August 24, 2018, pendente lite order. Thus, the mother's motions were not postjudgment motions to which Rule 59.1, or Rule 1(B), would have applied, and the juvenile court was not required to have extended the time for ruling on those motions.
The father moved to continue the December 27, 2018, trial due to his counsel's having scheduled hip-replacement surgery less than two weeks before the date of trial. The juvenile court granted the father's motion without setting a new date for the trial. In March 2019, the mother filed a motion seeking to have the matter set for a hearing on her December 1, 2018, motion to set aside the August 15, 2018, order. The juvenile court set the mother's motion for a hearing to be held on April 3, 2019. However, on April 1, 2019, the juvenile court entered an order denying the mother's December 1, 2018, motion and setting the matter for a trial to be held on May 14, 2019.
The trial was finally conducted before the juvenile court on May 14, 2019. The mother appeared with counsel and the father appeared pro se, his counsel having withdrawn in April 2019. Counsel for DHR did not appear. After hearing the testimony of the mother, the father, and T.L., the father's aunt, the juvenile court, on May 19, 2019, entered an order awarding the father sole legal and physical custody of the child. The mother filed a motion seeking reconsideration of that order, which the juvenile court denied after a hearing. The mother filed a notice of appeal to this court.
The juvenile court makes reference at the trial and in its May 19, 2019, order to the "recusal" of the referee because of his prior representation of the father; the record contains no order indicating that the referee "recused" or disqualified himself. At trial, the mother's counsel mentioned an earlier trial before the referee but indicated that it was not completed before the referee discovered his prior representation of the father. Oddly, the juvenile court refers to the proceeding as an "appeal" of the referee's order. In any event, the trial before the juvenile court was the first completed trial of the custody issue between the two parents and is not an "appeal" or a rehearing of a decision of the referee. See Ala. Code 1975, § 12-15-106 (governing the use of referees in juvenile court and the procedure to be utilized when a referee is used).
The May 19, 2019, order indicates that it awards the parents "joint custody" but then names the father the "primary physical custodian and legal decision maker" and awards the mother standard visitation. We have explained that this court will interpret custody judgments or orders that use inappropriate terminology by utilizing the types of custody authorized by the legislature in Ala. Code 1975, § 30–3–151, which became effective in 1997, more than 20 years ago. See Smith v. Smith, 887 So. 2d 257, 261–62 (Ala. Civ. App. 2003). The award of "primary physical custody" to the father is an award of "sole physical custody," see Ala. Code 1975, § 30-3-151(5) (defining "sole physical custody" as "[o]ne parent has sole physical custody and the other parent has rights of visitation ...."), and the statement that the father is the "legal decision maker" appears to award the father "sole legal custody," which is defined in Ala. Code 1975, § 30-3-151(4), as "[o]ne parent has sole rights and responsibilities to make major decisions concerning the child ...."
The mother filed what she entitled a Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate the May 19, 2019, order. However, as will be explained, infra, the May 19, 2019, order is not a final judgment, and the motion the mother filed is therefore more properly viewed as a motion to reconsider an interlocutory order. See D.D. v. Calhoun Cty. Dep't of Human Res., 81 So. 3d 377, 379 n.2 (Ala. Civ. App. 2011) (quoting Ex parte Troutman Sanders, LLP, 866 So. 2d 547, 550 (Ala. 2003), quoting in turn Malone v. Gainey, 726 So. 2d 725, 725 n.2 (Ala. Civ. App. 1999) ) (explaining that "a ‘ "Rule 59 motion may be made only in reference to a final judgment" ’ ").
On appeal the mother argues that her due-process rights were infringed both by the entry of the August 15, 2018, order and by the entry of the May 19, 2019, order. With regard to the August 15, 2018, order, the mother asserts that she was not provided notice of the proceedings before the referee. Regarding the May 19, 2019, order, the mother asserts that, as a result of the entry of the August 15, 2018, order, which she maintained had been entered in violation of her right to due process, the juvenile court had improperly required her to meet the burden imposed by Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), upon a parent seeking a modification of an existing custody order favoring the other parent.
Although the juvenile court does not refer to the Ex parte McLendon standard in the May 19, 2019, order, the mother contends that certain language in that order indicates that the juvenile court utilized that standard, which requires that a parent seeking a modification of custody prove a material change of circumstances and that the child's best interest would be materially promoted by a change in custody, in making its determination of custody in the May 19, 2019, order. See, e.g., S.L.L. v. L.S., 47 So. 3d 1271, 1278 (Ala. Civ. App. 2010). We note that, in cases in which a court is determining the paternity of a child born out of wedlock and is also deciding the issue of custody for the first time after a child has been in the custody of the mother for a significant period, we have indicated that a court should apply "the best-interests standard discussed in Ex parte Couch, 521 So. 2d 987 (Ala. 1988), while considering ‘ "the effect on the child of disrupting or continuing an existing custodial status." ’ " F.C. v. S.J.M., 239 So. 3d 590, 598 (Ala. Civ. App. 2017) (quoting T.N.S.R. v. N.P.W., 170 So. 3d 684, 687 (Ala. Civ. App. 2014), quoting in turn Ex parte Devine, 398 So. 2d 686, 697 (Ala. 1981) ). The evidence presented to the juvenile court in this case indicated that, in fact, the child had resided primarily with the father's family since shortly after his birth and with the father for several months before the entry of the August 15, 2018, order; therefore, we do not necessarily read the juvenile court's reference to "returning" the child to the mother as an indication that the juvenile court treated the custody issue as if it were a modification of an earlier award of custody to the father. However, because we are dismissing this appeal, see discussion, infra, we urge the juvenile court to be more clear regarding the standard it utilizes in making its custody determination when entering its final judgment.
" ‘Even though this issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal. " ‘Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.’ " Naylor v. Naylor, 981 So. 2d 440, 441 (Ala. Civ. App. 2007) (quoting
McMurphy v. East Bay Clothiers, 892 So. 2d 395, 397 (Ala. Civ. App. 2004) ). "The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case." Hubbard v. Hubbard, 935 So. 2d 1191, 1192 (Ala. Civ. App. 2006) (citing Jim Walter Homes, Inc. v. Holman, 373 So. 2d 869, 871 (Ala. Civ. App. 1979) ). "[A] final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’ " Dees v. State, 563 So. 2d 1059, 1061 (Ala. Civ. App. 1990) (quoting Tidwell v. Tidwell, 496 So. 2d 91, 92 (Ala. Civ. App. 1986) ).’ "
O.Y.P. v. Lauderdale Cty. Dep't of Human Res., 148 So. 3d 1081, 1082–83 (Ala. Civ. App. 2014) (quoting Butler v. Phillips, 3 So. 3d 922, 925 (Ala. Civ. App. 2008) ).
As noted above, this action began when DHR filed, on behalf of the mother, a complaint to establish paternity and child support, including retroactive child support. From what we can discern from the record, DHR simply ceased appearing in the action, and the juvenile court did not adjudicate the claim for retroactive child support or the request that the mother and/or the father be required to name the child on his or her health insurance in the May 19, 2019, order. Because those claims have not been adjudicated, the May 19, 2019, order is not " ‘a "terminal decision ... demonstrat[ing] ... a complete adjudication of all matters in controversy between the litigants." ’ " O.Y.P., 148 So. 3d at 1083 (quoting Butler, 3 So. 3d at 925, quoting in turn Dees v. State, 563 So. 2d 1059, 1061 (Ala. Civ. App. 1990) ). Because the May 19, 2019, order is not a final judgment capable of supporting this appeal, we must dismiss the mother's appeal. J.M.M. v. J.C., 50 So. 3d 1076, 1078 (Ala. Civ. App. 2010) (quoting Young v. Sandlin, 703 So. 2d 1005, 1008 (Ala. Civ. App. 1997), quoting in turn Powell v. Republic Nat'l Life Ins. Co., 293 Ala. 101, 102, 300 So. 2d 359, 360 (1974) ) (" ‘ "When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu." ’ ").
"The state becomes the real party in interest when it possesses a substantive right to recover funds the state has expended for the support of the child; i.e., when a state furnishes support to a child, it has the right to seek reimbursement from a parent, and to establish the parent's duty to pay child support in the future." State ex rel. Robertson v. Robertson, 675 So. 2d 422, 424–25 (Ala. Civ. App. 1995) (emphasis omitted).
APPEAL DISMISSED.
Thompson, P.J., and Moore, Donaldson, and Hanson, JJ., concur.