Ex parte F.G. PETITION FOR WRIT OF MANDAMUS ( 2023 )

REL: March 17, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________
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_________________________
Ex parte F.G.
PETITION FOR WRIT OF MANDAMUS
(In re: P.C.
v.
F.G.)
(Jefferson Juvenile Court, Bessemer Division, JU-14-678.03)
MOORE, Judge.
F.G. ("the mother") petitions this court for a writ of mandamus
directing the Bessemer Division of the Jefferson Juvenile Court ("the
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juvenile court") to set aside its order denying her motion to dismiss a
petition for a rule nisi filed by P.C. ("the father"). We deny the mother's
petition.
Procedural History
On September 19, 2014, the father filed a petition in the juvenile
court alleging that the parties' child, H.C.G. ("the child"), who was born
on January 4, 2011, was dependent and requesting an award of custody
of the child. The father provided separate addresses for himself and the
mother. His petition was assigned case number JU-14-678.01 ("the .01
action"). On November 20, 2014, the juvenile court entered a judgment
in the .01 action that provides:
"This matter before the court on private dependent
petition. The father was DNA tested and pursuant to
Labcorp. COT-034690 [the father] is adjudicated the
biological father of [the child] 99.99%. [The mother] and [the
father] have reconciled. Therefore joint legal and physical
custody of the minor child is vested in both parents. This
matter is closed. Case removed from docket."
On August 29, 2015, the father filed a verified emergency petition
for pendente lite custody. On the face of the father's August 29, 2015,
petition appears a handwritten case number bearing the number of the
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.01 action. In the electronic filing stamp located on the top right of the
petition, however, the case number is listed as "68-CS-2015-900415.00"
("the CS action").1 In his petition, the father asserted, among other
things, that the parties had separated, and he sought an award of
pendente lite custody of the child. The juvenile court entered an order 2
on September 10, 2015, that provides, in pertinent part:
"The father has petitioned this court for pendente lite
custody…. The parties have joint custody under [the .01
action]. The petition does not allege dependency so the matter
shall be decided under this case number. A [guardian ad
litem] report has been submitted and based upon the report
and arguments of both attorneys pendente lite custody is
vested in the mother and the father shall have visitation as
set out in Exhibit A. This case is set for a custody trial on
October 21, 2015."
1"This court has routinely treated cases with a 'CS' designation as
falling within the jurisdiction of the juvenile court." L.R.S. v. M.J., 229
So. 3d 772, 776 (Ala. Civ. App. 2016). Thus, we presume that, whether
the father's August 29, 2015, petition proceeded in the .01 action or in the
CS action, it remained properly before the juvenile court at all times.
2We note that the juvenile court's September 10, 2015, order bears
the case number of the .01 action, but the exhibit attached thereto bears
the case number of the CS action.
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Exhibit A, which was attached to the September 10, 2015, order, set out
the terms to which the parties had agreed regarding visitation. On
December 21, 2015, the juvenile court entered a judgment in the .01
action indicating that the parties had represented to the court that an
agreement had been reached and that they did not wish to proceed to
trial. In accordance with the parties' agreement, the juvenile court
awarded the parties joint legal custody of the child, directed that "the
[mother] shall have the primary physical custody," specified each party's
parenting time with the child, and declined to award either party child
support.3
3We
note that the December 21, 2015, judgment awarded the
parties approximately equal parenting time with the child and that the
juvenile court declined to award child support to either party because
"both parents are custodial parents and neither parent is a non-custodial
parent." To the extent those provisions conflict with the award of
"primary physical custody" to the mother, we note that the resolution of
any ambiguities in the juvenile court's December 21, 2015, judgment or
its later judgments is not pertinent to this court's resolution of the
mother's argument in her petition for the writ of mandamus regarding
the denial of her motion to dismiss, and, accordingly, we decline to
further address the same.
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On April 4, 2018, the mother filed in the juvenile court a petition to
modify the custody of the child; that petition was assigned case number
JU-14-678.02 ("the .02 action"). The mother sought an award of sole legal
and sole physical custody of the child and an award of child support. On
September 24, 2018, the juvenile court entered a judgment in the .02
action that, among other things, maintained its award of sole physical
custody of the child to the mother, modified the parties' parenting time
with the child while still maintaining approximately equal amounts of
parenting time for each party, and, again, declined to award child support
to either party because "both parents are custodial parents and neither
parent is a non-custodial parent." The juvenile court included additional
provisions in its September 24, 2018, judgment regarding the parties'
parenting of the child.
On June 29, 2022, the father filed in the juvenile court a verified
petition for a rule nisi, asserting, among other things, that the mother
had denied him his custodial periods with the child in violation of the
juvenile court's September 24, 2018, judgment. The father's petition was
assigned case number JU-14-678.03 ("the .03 action"). On October 17,
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2022, the mother filed a motion to dismiss the .03 action. She alleged
that the father's September 19, 2014, petition in the .01 action did not
sufficiently invoke the juvenile court's dependency jurisdiction, that the
.01 action had been a custody dispute between the parties, and that, as a
result, the juvenile court lacked subject-matter jurisdiction over the .03
action and all previous actions between the parties. Additionally, the
mother filed in the .01 action a motion to set aside the judgment,
pursuant to Rule 60(b)(4), Ala. R. Civ. P., based on the father's having
failed to invoke the dependency jurisdiction of the juvenile court in his
September 19, 2014, petition in the .01 action. On November 17, 2022,
the juvenile court entered an order in the .03 action indicating that the
mother's Rule 60(b)(4) challenge to the juvenile court's subject-matter
jurisdiction over the earlier proceedings was untimely filed, and it stated
at the close of its order "petition denied." 4 On November 29, 2022, the
4We interpret the juvenile court's November 17, 2022, order as
denying the mother's motion to dismiss filed in the .03 action and we
proceed to address the mother's arguments in her petition as they relate
to that denial. We decline, however, to address the mother's argument
that the juvenile court erred in denying her Rule 60(b)(4), Ala. R. Civ. P.,
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father filed a motion to set the .03 action for trial. On November 30, 2022,
the juvenile court entered an order setting the case for a trial to be held
on March 29, 2023. The mother filed her petition for the writ of
mandamus with this court on January 9, 2023.
Timeliness of the Mother's Petition
The mother asserts in her petition before this court that the
juvenile court's November 17, 2022, order was unclear but that, upon the
juvenile court's filing of its November 30, 2022, order setting the case for
a trial, the mother realized that the juvenile court intended to proceed to
hear the father's petition for a rule nisi, thus prompting her to file her
mandamus petition with this court. Rule 21(a)(3), Ala. R. App. P.,
indicates that a petition for the writ of mandamus "shall be filed within
a reasonable time" and that the "presumptively reasonable time for filing
a petition seeking review of an order of a trial court or of a lower appellate
court shall be the same as the time for taking an appeal." In the present
case, it appears that, in its November 17, 2022, order, the juvenile court
motion as having been untimely filed because that motion was filed by
the mother in the .01 action, which is not before this court.
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implicitly denied the mother's motion to dismiss. Even assuming that
the mother was uncertain of the effect of that order until the entry of the
November 30, 2022, order setting the case for a trial, the reasonable time
for filing a petition for the writ of mandamus from the latter order would
have fallen on December 14, 2022, 14 days after the entry of the
November 30, 2022, order. See Rule 4(a)(1), Ala. R. App. P.; Rule 21. The
mother filed her petition with this court on January 9, 2023, well beyond
that date. However, because the mother challenges the juvenile court's
subject-matter jurisdiction in her mandamus petition, we may still
consider the merits of her petition despite her failure to file her petition
within the presumptively reasonable period prescribed by Rule 21. See
Ex parte K.W., 293 So. 3d 930, 934 n.6 (Ala. Civ. App. 2019). Accordingly,
we proceed to consider the merits of the mother's petition.
Analysis
The mother argues that the juvenile court erred in denying her
motion to dismiss for lack of subject-matter jurisdiction.
"The denial of a motion to dismiss for lack of jurisdiction
is reviewable upon a timely filed petition for a writ of
mandamus. Ex parte Flint Constr. Co., 775 So. 2d 805, 808
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(Ala. 2000); Drummond Co. v. Alabama Dep't of Transp., 937
So. 2d 56, 57 (Ala. 2006). With regard to an appellate court's
consideration of a petition for a writ of mandamus, our
supreme court has stated:
" 'This Court has consistently held that the
writ of mandamus is an extraordinary and drastic
writ and that a party seeking such a writ must
meet certain criteria. We will issue the writ of
mandamus only when (1) the petitioner has a clear
legal right to the relief sought; (2) the respondent
has an imperative duty to perform and has refused
to do so; (3) the petitioner has no other adequate
remedy; and (4) this Court's jurisdiction is
properly invoked. Ex parte Mercury Fin. Corp.,
715 So. 2d 196, 198 (Ala. 1997). Because
mandamus is an extraordinary remedy, the
standard by which this Court reviews a petition for
the writ of mandamus is to determine whether the
trial court has clearly abused its discretion. See
Ex parte Rudolph, 515 So. 2d 704, 706 (Ala. 1987).'
"Ex parte Flint Constr. Co., 775 So. 2d at 808. In discussing
the review of a denial of a motion to dismiss for lack of subject-
matter jurisdiction, the court further explained:
" ' "In Newman v. Savas, 878 So. 2d 1147(Ala. 2003), this Court set out the standard of
review of a ruling on a motion to dismiss for lack
of subject-matter jurisdiction:
" ' " 'A ruling on a motion to dismiss is
reviewed without a presumption of
correctness. Nance v. Matthews, 622
So. 2d 297, 299 (Ala. 1993). This Court
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must accept the allegations of the
complaint as true. Creola Land Dev.,
Inc. v. Bentbrooke Housing, L.L.C., 828
So. 2d 285, 288 (Ala. 2002).
Furthermore, in reviewing a ruling on
a motion to dismiss we will not consider
whether the pleader will ultimately
prevail but whether the pleader may
possibly prevail. Nance, 622 So. 2d at
299.'
" ' "878 So. 2d at 1148-49." '
"Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 21 (Ala.
2007) (quoting Pontius v. State Farm Mut. Auto. Ins. Co., 915
So. 2d 557, 563 (Ala. 2005))."
Ex parte Diefenbach, 64 So. 3d 1091, 1093 (Ala. Civ. App. 2010).
The mother argues that, because the juvenile court never
adjudicated the child to be dependent in the .01 action, it lacked
jurisdiction to adjudicate the child's custody in the .01 action and all
subsequent actions. We disagree. Although the mother is correct that
the juvenile court did not adjudicate the child dependent in response to
the father's September 19, 2014, petition in the .01 action, the November
20, 2014, judgment entered in the .01 action established the father's
parentage of the child. Section 12-15-115(a)(6), Ala. Code 1975, provides,
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in pertinent part, that a juvenile court shall exercise original jurisdiction
of "[p]roceedings to establish parentage of a child pursuant to the
Alabama Uniform Parentage Act, Chapter 17 of Title 26." Accordingly,
it appears that the juvenile court was exercising its jurisdiction pursuant
to § 12-15-115(a)(6) when it established the father's paternity of the child
in its November 20, 2014, judgment. Based on the materials before this
court, it does not appear that the mother has challenged the juvenile
court's jurisdiction on that basis at any time before either the juvenile
court or this court and there is nothing before us in the materials
provided with the mother's mandamus petition indicating that the
juvenile court lacked jurisdiction to adjudicate the .01 action pursuant to
§ 12-15-115(a)(6).
Section 12-15-115(a)(7), Ala. Code 1975, provides that a juvenile
court shall exercise original jurisdiction of "[p]roceedings to establish,
modify, or enforce support, visitation, or custody when a juvenile court
previously has established parentage." Because the father's petition in
the .03 action seeks to enforce the juvenile court's judgments regarding
custody and visitation related to the child, whose parentage the juvenile
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court had previously established, the juvenile court has subject-matter
jurisdiction over the father's petition in the .03 action pursuant to § 12-
15-115(a)(7).
The mother also implies in her mandamus petition that the father
failed to pay a filing fee along with his August 29, 2015, petition seeking
pendente lite custody and that, as a result, the juvenile court did not
obtain jurisdiction over that petition. We note that the mother failed to
raise this argument before the juvenile court and, more importantly, we
note that neither the CS action nor the .01 action are before this court.
Accordingly, we decline to address the mother's argument.
Because the materials before this court do not indicate that the
juvenile court lacks jurisdiction over the father's petition in the .03 action
and the mother has failed to show a clear legal right to the relief sought,
we deny the mother's petition for the writ of mandamus. In light of that
denial, the mother's motion before this court requesting a stay of the trial
setting on the father's petition in the .03 action is denied as moot.
MOTION TO STAY DENIED; PETITION DENIED.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.
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