Opinion
2180196
08-16-2019
Brandee Marie BARNES v. Christopher Scott BARNES
Charles H. Dunn and Joseph P. Callaway of Boyd, Fernambucq & Dunn, P.C., Birmingham, for appellant. Scott A. Gilliland, Vestavia Hills, for appellee.
Charles H. Dunn and Joseph P. Callaway of Boyd, Fernambucq & Dunn, P.C., Birmingham, for appellant.
Scott A. Gilliland, Vestavia Hills, for appellee.
THOMPSON, Presiding Judge. The Shelby Circuit Court ("the trial court") entered a judgment on October 22, 2015, divorcing Christopher Scott Barnes ("the father") and Brandee Marie Barnes ("the mother") and incorporating an agreement reached by the parties. The parties' divorce action was assigned case number DR-15-72.00. Among other things, the parties were awarded joint legal custody of their children and the mother was awarded sole physical custody. See 30-3-151, Ala. Code 1975 (defining various forms of custody).
On July 13, 2017, the trial court entered a judgment that modified the divorce judgment in ways not pertinent to the issue presented in this appeal. That modification action was assigned case number DR-15-72.01.
On December 5, 2017, the father filed in the trial court a petition in the divorce action (case number DR-15-72.00) pursuant to the Alabama Parent-Child Relationship Protection Act ("the Act"), § 30-3-160 et seq., Ala. Code 1975. Attached to the father's petition was a November 6, 2017, letter from the mother notifying him, pursuant to the requirements of the Act, of her intention to relocate to Mississippi with the children. The father's December 5, 2017, petition was an objection, filed pursuant to the Act, to the mother's proposed relocation with the parties' children. See § 30-3-169, Ala. Code 1975 ("The person entitled to determine the principal residence of a child may change the principal residence of a child after providing notice as provided herein unless a person entitled to notice files a proceeding seeking a temporary or permanent order to prevent the change of principal residence of a child within 30 days after receipt of such notice.").
The mother's letter was dated November 6, 2017, and the father stated that he received that letter on November 11, 2017. Because the date of the notice to the father is not at issue, we refer to the letter by the November 6, 2017, date.
On January 8, 2018, the trial court, apparently ex mero motu, dismissed the father's December 5, 2017, petition in the divorce action without prejudice and ordered the father to refile the action. In its January 8, 2018, order, the trial court explained that the December 5, 2017, petition had been erroneously filed in the divorce action and that the father should refile his petition and that it should be designated as case number DR-15-72.02.
On February 8, 2018, the father refiled his petition objecting to the mother's proposed relocation with the children, and the action initiated by that petition was designated as case number DR-15-72.02. In that February 8, 2018, petition, the father sought an order preventing the mother from relocating with the children and requested a modification of child custody. The mother filed an answer in which she denied the claims in the father's February 8, 2018, petition and demanded strict proof thereof. The trial court conducted an ore tenus hearing on July 24, 2018.
On August 8, 2018, the father filed a motion for an emergency order to prevent the children from being removed from Alabama pending the trial court's entry of a final judgment; in that motion, the father alleged that the mother intended to enroll the children in school in Mississippi. The trial court entered an order on August 10, 2018, in which it granted the father's emergency motion and ordered that the mother was not to move the children out of this state.
Also on August 10, 2018, the trial court entered a judgment sustaining the father's objection to the proposed relocation and ordering that the mother was not to remove the children from this state. The trial court denied the father's request for a modification of custody, noting that the mother had indicated that she would not relocate if a relocation would result in the modification of custody.
The mother filed a postjudgment motion on August 16, 2018; in that motion, the mother challenged the evidentiary support for the trial court's August 10, 2018, judgment. The trial court denied that postjudgment motion on August 16, 2018. Thereafter, the mother's attorney withdrew, and another attorney filed a notice of appearance on behalf of the mother.
On September 5, 2018, the mother, represented by new counsel, filed a second postjudgment motion in which she argued that the father's February 8, 2018, petition was not timely filed under the Act, and, therefore, she argued that the trial court did not have jurisdiction to consider that petition. The father filed an opposition to that postjudgment motion. On October 16, 2018, the trial court entered an order denying the September 5, 2018, postjudgment motion. In denying the mother's September 5, 2018, postjudgment motion, the trial court stated, in part, that
"[t]he ultimate disposition of case no. DR-15-72.00[, i.e., the January 8, 2018, order dismissing the father's December 5, 2018, petition,] does not change the fact that the father did ‘file a proceeding seeking a temporary or permanent order to prevent the change of principal residence of a child within 30 days after receipt of such notice,’ thereby complying with the mandate of § 30-3-169[, Ala. Code 1975]."
The mother filed a notice of appeal to this court on November 27, 2018. Initially, we note that the mother's appeal was timely filed. Generally, successive postjudgment motions are not allowed. Ex parte Keith, 771 So. 2d 1018 (Ala. 1998). However, the mother's second, September 5, 2018, motion was timely filed within 30 days of the entry of the August 10, 2018, judgment, and that second postjudgment motion raised a different argument than the one asserted in the mother's original postjudgment motion. Wynn v. Steger, 223 So. 3d 938, 940 (Ala. Civ. App. 2016). For that reason, the second postjudgment motion was valid and operated to extend the time for the mother to file her appeal. Wynn v. Steger, 223 So. 3d at 940 (quoting Roden v. Roden, 937 So. 2d 83, 85 (Ala. Civ. App. 2006), for the proposition that " ‘Rule 59.1 has been held to apply separately to each distinct timely filed postjudgment motion so as to afford the trial court a full 90-day period to rule on each separate motion’ ").
On appeal, the mother challenges the trial court's August 10, 2018, judgment denying her request to relocate with the parties' children.
"Our standard of review is well settled. A trial court's judgment based on ore tenus evidence will be presumed correct and will not be reversed on appeal absent a showing that the trial court acted outside its discretion or that the judgment is unsupported by the evidence so as to be plainly and palpably wrong. Scholl v. Parsons, 655 So. 2d 1060, 1062 (Ala. Civ. App. 1995). However, when an appellate court is presented with an issue of law, we review the judgment of the trial court as to that issue de novo. Ex parte Perkins, 646 So. 2d 46 (Ala. 1994)."
Henderson v. Henderson, 978 So. 2d 36, 39 (Ala. Civ. App. 2007).
The mother argues on appeal that the father did not timely object to her proposed relocation under the Act by filing the February 8, 2018, petition in this case. Section 30-3-169, Ala. Code 1975, and § 30-3-169.1, Ala. Code 1975, require a parent objecting to a proposed relocation to file an action objecting to the proposed relocation within 30 days of receipt of notice from the relocating parent. The mother points out that the father's February 8, 2018, petition that initiated this action was not filed within 30 days of the mother's November 6, 2017, notice to the father of her intention to relocate with the children. See note 1, supra.
The Act contains a provision setting forth an exception to the 30-day time limit on filing an objection to a proposed relocation with a child:
"A proceeding filed under this section must be filed within 30 days of receipt of notice of a proposed change of principal residence of a child, except that the court may extend or waive the time for commencing such action upon a showing of good cause, excusable neglect, or that the notice required by subsection (b) of Section 30-3-165 is defective or insufficient upon which to base an action under this article."
§ 30-3-169.1(c), Ala. Code 1975 (emphasis added). The Act does not define the terms "good cause" or "excusable neglect" as those terms are used in § 30-3-169.1.
The mother contends in her brief on appeal that the father did not demonstrate a basis for an exception to the requirement that he file his objection to her proposed relocation within 30 days of his receipt of the notice of that intended relocation. With regard to her argument that the father did not show "good cause" or "excusable neglect" in filing the February 8, 2018, petition in this case, the mother relies on T.C. v. C.E., 91 So. 3d 684, 686 (Ala. Civ. App. 2011). In that case, the father, who was the children's primary custodian, notified the mother of his intention to relocate. Within 30 days of that notice, the mother in that case sent the father a letter objecting to the proposed relocation, but she did not initiate an action pursuant to the Act until well after the expiration of the 30 days. The juvenile court in that case denied the father's motion to dismiss the mother's action, and it later denied the father's request to relocate. This court, "on order of the Alabama Supreme Court and on rehearing ex mero motu," reversed the juvenile court's judgment, concluding that the juvenile court had lacked jurisdiction because the Act required that the mother timely file an action objecting to the proposed relocation and that the letter to the father was not sufficient under the Act to constitute the commencement of an action objecting to the relocation. 91 So. 3d at 686. In so holding, this court rejected the mother's argument that the juvenile court had implicitly determined that the time for filing her action was extended for "good cause" or "excusable neglect" under § 30-3-169.1 ; this court cited both the language of the juvenile court's ruling denying the motion to dismiss and the fact that
"the mother made no showing at trial regarding her conduct in response to the father's notice tending to show that her failure to do anything other than authorize her attorney to send a letter to the father objecting to the proposed relocation within 30 days of receiving notice was a product of ‘excusable neglect’ or amounted to ‘good cause’ so as to warrant permitting her to maintain her [untimely] action against the father."
T.C. v. C.E., 91 So. 3d at 686.
Our supreme court vacated this court's judgment in T.C. v. C.E., supra, concluding that the juvenile court, and, consequently, this court, had lacked subject-matter jurisdiction over the dispute in that case. Ex parte C.E., 91 So. 3d 687 (Ala. 2011). The supreme court explained that the mother's letter, i.e., her " ‘unfiled "objection" ’ " to the father's proposed relocation in that case did not constitute the filing of a proceeding, as required by § 30-3-169 of the Act. Ex parte C.E., 91 So. 3d at 691. However, our supreme court did not address this court's determination that the mother had not demonstrated excusable neglect or good cause for an untimely filing under § 30-3-169.1 of the Act. Instead, it concluded that, given that the mother's letter did not timely initiate an action and that, under the applicable law at that time, the mother was required to file her action in the circuit court rather than in the juvenile court, the juvenile court had never acquired subject-matter jurisdiction over the action. Ex parte C.E., 91 So. 3d at 692.
The version of § 12-15-117, Ala. Code 1975, in effect at the time of the decision in Ex parte C.E., supra, "divest[ed] the juvenile courts of subject-matter jurisdiction over custody proceedings except in those instances where the child had been adjudicated dependent, delinquent, or in need of supervision" and did not provide continuing jurisdiction in the juvenile court unless the child had previously been found dependent. Ex parte C.E., 91 So. 3d at 692 ; R.Z. v. S.W., 141 So. 3d 1099, 1101 (Ala. Civ. App. 2013). Section 12-15-117 was later amended, and § 12-15-115(a)(7), Ala. Code 1975, was added to confer continuing jurisdiction in the juvenile court over, among other things, custody actions when paternity had earlier been established in the juvenile court. L.H. v. L.S., 140 So. 3d 946, 948 n.1 (Ala. Civ. App. 2013).
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In this case, the record clearly demonstrates that the reason the father's petition was purportedly filed late was because the trial court dismissed his original petition without prejudice and ordered that it be refiled. It is clear that, but for the action of the trial court in dismissing the father's original petition, the father's petition would have been timely filed.
The mother points out that the father waited 31 days after the entry of the trial court's January 8, 2019, order to refile his objection to her proposed relocation. She contends on appeal that that delay was too long and served to deprive the trial court of authority under the Act to consider the father's action. However, § 30-3-169.1(c) states only that the trial court "may extend or waive the time" for filing a proceeding objecting to a proposed relocation upon a showing of excusable neglect or for good cause. Neither that section nor any other part of the Act sets forth a time limitation upon the trial court's discretion to extend or waive the time requirement set forth in § 30-3-169 and § 30-3-169.1.
" ‘ "[The Act] does not require the trial court to make specific findings of fact in its judgment, see Clements v. Clements, 906 So. 2d 952, 957 (Ala. Civ. App. 2005), and, in the absence of specific findings of fact, ‘ "this court must assume that the trial court made those findings necessary to support its judgment." ’ Id. (quoting Steed v. Steed, 877 So. 2d 602, 603 (Ala. Civ. App. 2003) )."
" ‘ Pepper v. Pepper, 65 So. 3d 421, 426 (Ala. Civ. App. 2010)....
" ‘ "[W]here a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness. See Scholl v. Parsons, [655 So. 2d 1060 (Ala. Civ. App. 1995) ]. ‘The presumption of correctness is based in part on the trial court's unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.’ Littleton v. Littleton, 741 So. 2d 1083, 1085 (Ala. Civ. App. 1999). This court is not permitted to reweigh the evidence on appeal and to substitute its judgment for that of the trial court.
Somers v. McCoy, 777 So. 2d 141 (Ala. Civ. App. 2000) ; see also Ex parte Perkins, 646 So. 2d 46 (Ala. 1994)."
" ‘ Clements v. Clements, 906 So. 2d 952, 959 (Ala. Civ. App. 2005).’ "
Boyd v. Boyd, [Ms. 2170729, March 1, 2019] ––– So. 3d ––––, ––––, 2019 WL 989244 (Ala. Civ. App. 2019) (as modified on denial of rehearing) (quoting Bates v. Bates, 103 So. 3d 836, 842 (Ala. Civ. App. 2012) ).
We interpret the trial court's October 16, 2018, postjudgment order as an implicit determination under § 30-3-169.1(c) that the father had "good cause" for the timing of the filing of the petition in this action. See Boyd v. Boyd, supra. See also, generally, Ex parte G.L.C., [Ms. 1170813, Oct. 26, 2018] 281 So. 3d 401, 408, 2018 WL 5307629 (Ala. 2018) (concluding that equity compelled a determination that the mother's notice of appeal was timely filed when the mother took the notice of appeal to the clerk of court in a timely manner but was not allowed to file her notice of appeal). The father's original, December 5, 2018, filing served as notice to the mother that the father objected to her proposed relocation. Nothing in the record indicates that the father sought to dismiss his action or that he abandoned his objection to the proposed relocation, and the record does not demonstrate that the father had no intention of refiling his petition objecting to the proposed relocation after his original petition was dismissed without prejudice by the trial court. Given the facts of this case, we cannot say that the mother has demonstrated that the trial court erred in finding that the father had complied with the time requirements of the Act in filing his objection to her proposed relocation.
The mother also raises an issue asserting that the trial court erred in determining that she had the initial burden of proof in this action. The Act provides:
"In proceedings under this article[, i.e., the Act] unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party."
Thus, under § 30-3-169.4, in this case, the mother, as the party seeking to relocate, would have the initial burden of proof in rebutting the presumption that the change in the children's principal residence was not in the children's best interests. However, the mother contends that § 30-3-169.4 does not apply in this case; she bases that argument on her contention that the father's action objecting to her proposed relocation was not filed within the time limits set forth in the Act. As is explained above, however, we have held that the mother has failed to demonstrate that the trial court erred in treating the father's February 8, 2018, petition as timely filed. Therefore, we must reject the basic premise upon which the mother grounds this argument, i.e., that, in the absence of a timely filed petition, the Act does not apply to govern this action.
The mother makes no argument that the evidence presented by the parties during the ore tenus hearing did not support the trial court's August 10, 2018, judgment sustaining the father's objection to her proposed relocation with the parties' children. Accordingly, any such argument is waived. See Gary v. Crouch, 923 So. 2d 1130, 1136 (Ala. Civ. App. 2005) ("[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived.").
For the reasons stated in this opinion, the trial court's August 10, 2018, judgment upholding the father's objection to the mother's proposed relocation, with the parties' children, to Mississippi is affirmed.
AFFIRMED.
Moore, Donaldson, and Edwards, JJ., concur.
Hanson, J., concurs in part and concurs in the result, with writing.
HANSON, Judge, concurring in part and concurring in the result.
Alabama Code 1975, §§ 30-3-169 and 30-3-169.1, both of which appear in the Alabama Parent-Child Relationship Protection Act ("the APCRPA"), Ala. Code 1975, § 30-3-160 et seq., each speak of initiating "a proceeding" to obtain an order or judgment preventing relocation of the permanent residence of a minor child. The main opinion correctly notes that counsel for Christopher Scott Barnes ("the father") initially attempted to present the father's objections to the proposed relocation of the parties' children via a timely petition filed in the original divorce action and not by initiating a new civil proceeding under the APCRPA. As a technical matter, I believe that the father's counsel's conduct is best characterized as "excusable neglect" (as opposed to "good cause") and that, under the APCRPA, forgiveness therefor was within the discretion of the judge of the trial court who ultimately considered the merits of the father's objections after his petition had properly been filed as a new action. See Ala. Code 1975, § 30-3-169.1(c). Apart from that minor disagreement, I concur in the main opinion, and I concur in the result to affirm the judgment under review.