Opinion
2180234
05-03-2019
L.J. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES and W.B.
Carey N. Kirby, Anniston, for appellant. Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee Calhoun County Department of Human Resources. Derek Walton, Anniston, for appellee W.B.
Carey N. Kirby, Anniston, for appellant.
Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee Calhoun County Department of Human Resources.
Derek Walton, Anniston, for appellee W.B.
MOORE, Judge.
L.J. ("the mother") appeals from a judgment of the Calhoun Juvenile Court ("the juvenile court") upholding the terms of a settlement agreement entered into between the mother and W.B. ("the father"), pursuant to which, among other things, the mother's and the father's child, G.J. ("the child"), was declared dependent and the father was awarded sole physical custody of the child. We affirm the juvenile court's judgment.
Procedural History
On September 13, 2018, the Calhoun County Department of Human Resources ("DHR") filed in the juvenile court a petition alleging that the child was dependent. On that same date, the juvenile court entered an order appointing an attorney to represent the mother; an order appointing an attorney to represent the father; an order appointing a guardian ad litem to represent the interests of the child; and a shelter-care order that, among other things, transferred pendente lite custody of the child to DHR and set the case for a docket call on October 9, 2018. The juvenile court entered a request for a Court-Appointed Special Advocate ("CASA") volunteer to be assigned to the child's case on September 14, 2018, and, on that same date, the juvenile court entered an order that, among other things, directed the CASA worker appointed to the case to investigate all circumstances surrounding the welfare of the child and to report the same to the juvenile court.
On September 19, 2018, the guardian ad litem filed a motion for an immediate hearing, citing as the basis of the request DHR's purported intent to return the child to the mother and the guardian ad litem's resulting concerns. The juvenile court entered an order on that same date setting the guardian ad litem's motion for a hearing and directing DHR not to change the placement of the child before the date of the hearing without the guardian ad litem's consent. The guardian ad litem filed a motion to continue the hearing, and the juvenile court granted that motion, noting that its directive to DHR not to change placement of the child remained in full force and effect and directing the parties to notify the court if a hearing on placement of the child was needed.
On September 25, 2018, the father filed a motion to alter, amend, or vacate the juvenile court's shelter-care order, alleging that he should have been awarded temporary custody of the child. On that same date, the father filed a "renewed motion for temporary custody," in which he sought temporary custody of the child. The juvenile court entered an order on September 28, 2018, setting the father's motion seeking temporary custody for a hearing on October 18, 2018. On October 2, 2018, the mother filed an answer to the dependency petition. At the docket call on October 9, 2018, the mother and her appointed attorney, the father and an attorney standing in for his appointed attorney, an attorney standing in for the guardian ad litem, DHR's attorney, and the CASA worker appeared before the juvenile court. The mother and the father presented the terms of a settlement agreement to the court, and, following that hearing, the juvenile court entered a judgment on that same date based on that agreement. Specifically, among other things, the juvenile court adjudicated the child dependent; awarded the mother and the father joint legal custody of the child; awarded sole physical custody of the child to the father, subject to the mother's supervised visitation; and relieved DHR of custody and supervision of the child.
The mother filed a handwritten letter to the juvenile court on October 16, 2018, requesting that the child be returned to her care. On October 17, 2018, the juvenile court entered an order indicating that it had considered the mother's letter to be a motion to alter or amend the juvenile court's judgment and setting the same for a hearing on October 23, 2018. On October 18, 2018, the guardian ad litem sought a continuance of the hearing, and, on October 22, 2018, the attorneys representing the mother, the father, and DHR joined the guardian ad litem in a motion agreeing to extend the juvenile court's time for ruling on the mother's postjudgment motion "beyond the 14 days allowed by law." See Rule 1(B)(2), Ala. R. Juv. P. (allowing an extension of the 14-day period to rule on a postjudgment motion filed in the juvenile court "[u]pon the express written consent of all the parties, which consent shall appear of record"). The juvenile court entered an order granting the guardian ad litem's motion to continue on October 22, 2018, and extended the time to rule upon the mother's postjudgment motion until December 1, 2018.
On October 23, 2018, the mother filed a handwritten letter to the court, requesting that a different attorney be appointed to represent her based on her appointed attorney's agreement to continue the hearing on her postjudgment motion. On that same date, the mother, through her originally appointed counsel, filed an amended motion to alter, amend, or vacate, asserting that the mother had misunderstood the terms of the agreement she had entered into at the October 9, 2018, hearing that had resulted in the juvenile court's judgment on that same date. The juvenile court entered an order on October 24, 2018, setting the mother's postjudgment motion for a hearing on November 5, 2018. On October 26, 2018, the juvenile court entered an order appointing a different attorney to represent the mother. Following the November 5, 2018, hearing, the juvenile court entered an order on November 30, 2018, denying the mother's postjudgment motion. The mother filed her notice of appeal to this court on December 13, 2018.
Jurisdiction
On March 4, 2019, DHR filed a motion to dismiss the mother's appeal, arguing that this court lacks jurisdiction to consider the mother's appeal because the mother's notice of appeal was untimely filed.
" ‘The timely filing of [a] notice of appeal is a jurisdictional act.’ Rudd v. Rudd, 467 So.2d 964, 965 (Ala. Civ. App. 1985) ; see also Parker v. Parker, 946 So.2d 480, 485 (Ala. Civ. App. 2006) (‘an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived’)."
Kennedy v. Merriman, 963 So.2d 86, 88 (Ala. Civ. App. 2007).
DHR asserts in its motion that, with regard to the October 22, 2018, motion in which counsel for all the parties agreed to extend the juvenile court's authority to rule on the mother's postjudgment motion, "the time in which the juvenile court must rule on the motion could only be extended an additional 14 days" and that the juvenile court's extension of the time to rule on the motion until December 1, 2018, was not permitted. Accordingly, DHR argues, the juvenile court's failure to rule on the mother's postjudgment motion by November 13, 2018, resulted in the denial of that motion by operation of law on that date pursuant to Rule 59.1(dc), Ala. R. Civ. P., and in the untimely filing of the mother's notice of appeal from that denial according to Rule 28(C), Ala. R. Juv. P. (directing that a written notice of appeal from a juvenile-court judgment shall be filed within 14 days of the date of the entry of order or judgment appealed from). We disagree.
Rule 59.1, Ala. R. Civ. P., provides:
"No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59[, Ala. R. Civ. P.,] shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.
"(dc) District Court Rule. Rule 59.1 applies in the district courts, except that the time period of ninety (90) days is reduced to fourteen (14) days unless within that time an order extends the period, for good cause shown, for not more than an additional fourteen (14) days."
The Committee Comments to Amendment to Rule 59.1 Effective October 24, 2008, provide, in pertinent part, that the amendment to Rule 59.1(dc) allowing a district court to extend the 14-day period for ruling on a postjudgment motion for good cause shown "does not affect extensions of pendency by agreement of the parties as provided in the rule, nor is it intended to supersede any provision of the Alabama Rules of Juvenile Procedure." Rule 1(B), Ala. R. Juv. P., provides, in pertinent part, that
"[a]ll postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within 14 days after entry of order or judgment and shall not remain pending for more than 14 days, unless, within that time,
the period during which a postjudgment motion may remain pending is extended:
"(1) By written order of the juvenile court on its own motion, or upon motion of a party for good cause shown, for not more than 14 additional days; or
"(2) Upon the express written consent of all the parties, which consent shall appear of record; or
"(3) By the appellate court to which an appeal of the judgment would lie.
"A failure by the juvenile court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period."
In Greener v. Killough, 1 So.3d 93, 101-02 (Ala. Civ. App. 2008), this court stated, in pertinent part:
"In Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293 (Ala. 1998), the Alabama Supreme Court discussed statutory construction as follows:
" ‘ "Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect." ’
" 714 So.2d at 296 (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992) ). The same principle applies in interpreting a rule of civil procedure. See Moffett v. Stevenson, 909 So.2d 824, 826 (Ala. Civ. App. 2005). ‘ "It is this Court's responsibility to give effect to the legislative intent whenever that intent is manifested." ’ Surtees v. VFJ Ventures, Inc., 8 So.3d 950, 967 (Ala. Civ. App. 2008) (quoting Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 517 (Ala. 2003) )."
Our supreme court has observed that, "[w]hen interpreting a statute, [an appellate court] must read the statute as a whole because statutory language depends on context." Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So. 2d 513, 517 (Ala. 2003). Moreover, we must presume " ‘that every word, sentence, or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.’ " Ex parte Children's Hosp. of Alabama, 721 So.2d 184, 191 (Ala. 1998) (quoting Sheffield v. State, 708 So.2d 899, 909 (Ala. Crim. App. 1997) ).
As outlined above, only Rule 1(B)(1) of the Alabama Rules of Juvenile Procedure includes a limitation on the amount of time the period to rule on a postjudgment motion may be extended. Rule 1(B)(2) includes no language indicating that, upon the express written consent of all the parties, the period to rule on a pending postjudgment motion in a juvenile court may not be extended beyond 14 additional days. Reading Rule 1 as a whole, as we must, see Bean Dredging, L.L.C., supra, and considering that each provision has some force and effect, see Ex parte Children's, supra, we conclude that Rule 1(B)(2) does not require that the extension of time to rule on a postjudgment motion filed in juvenile court must be limited to 14 additional days when extended by the express written consent of all the parties. Because the Committee Comments to Rule 59.1 confirm that the Alabama Rules of Juvenile Procedure supersede Rule 59.1(dc), any consideration of that rule does not require a different outcome. Accordingly, the extension of the juvenile court's time to rule on the mother's postjudgment motion beyond an additional 14 days was allowable by the agreement of all the parties to extend that period. Because the mother filed her notice of appeal within 14 days from the juvenile court's timely denial of her postjudgment motion, her appeal to this court was timely, see Rule 28(C), Ala. R. Juv. P., and DHR's motion to dismiss is due to be denied. Having determined that the mother's appeal was timely filed and that this court has jurisdiction to adjudicate the same, we proceed to consider the merits of the mother's arguments on appeal.
Analysis
The mother argues that the juvenile court erred in declining to set aside the agreement of the parties that resulted in the juvenile court's October 9, 2018, judgment.
" ‘Agreements between parties ... are generally binding, and such agreements will not be set aside, "except for fraud, collusion, accident, surprise or some other ground of this nature." ’ Grantham v. Grantham, 656 So.2d 900, 901 (Ala. Civ. App. 1995) (quoting Brocato v. Brocato, 332 So.2d 722, 724 (Ala. 1976) ). ‘[A]n agreement reached in settlement of litigation is as binding upon the parties as any other contract.... Furthermore, there is a strong policy of law favoring compromises and settlements of litigation, especially in cases involving families.’ Tidwell v. Tidwell, 505 So.2d 1236, 1237 (Ala. Civ. App. 1987)."
Holder v. Holder, 86 So.3d 1001, 1002 (Ala. Civ. App. 2011).
The mother cites Grayson v. Hanson, 843 So.2d 146, 150 (Ala. 2002), for the proposition that "settlement agreements, like other agreements, are not valid when there has been no meeting of the minds with regard to the final terms of the agreement." She argues that, at the October 9, 2018, docket call during which the parties presented the terms of their agreement, there was no meeting of the minds and, therefore, the purported agreement was invalid. "When the facts material to the question whether a contract was formed are in dispute, the fact-finder must resolve that dispute." Walker v. Walker, 144 So.3d 359, 364 (Ala. Civ. App. 2013).
At the October 9, 2018, docket call, the juvenile court asked at the outset whether the parents and the guardian ad litem had reached an agreement, and the mother's attorney responded in the affirmative. The following exchange then occurred:
"[The mother's attorney]: Yes, Your Honor. We are agreeing to joint legal custody, primary placement of the child with the father ... and I believe that's it.
"The Court: So there would be an adjudication of dependency?
"[The mother's attorney]: Yes.
"The Court: With joint legal custody and sole physical custody being with the father?
"[The mother's attorney]: Yes.
"The Court: Okay.
"And [are] there any additions or corrections to the agreement as stated?
"[The mother's attorney]: Well, Judge, joint custody with -- joint physical custody, so she can have visits with the father -- with the child.
"[Counsel standing in for the father's attorney]: Just joint placement –-
"The Court: So joint physical placement would be the child being half time with both.
"[The mother's attorney]: No. Primary placement with father, so she does have visits with the child.
"The Court: Okay.
"So it would be sole physical with dad?
"[The mother's attorney]: Yes. I'm sorry, Judge.
"The Court: Okay.
"And the visitation is, what, by agreement of the parents?
"[The mother's attorney]: Yes.
"The Court: What says my guardian [ad litem]?
"[Counsel standing in for guardian ad litem]: Yes. I agree with that, with the father having the final decision -- like, if they can't agree, then he can –-
"THE COURT: Is a visitation -- just so that everybody is clear, is visitation supervised, not supervised, whatever the parents work out?
"[The mother's attorney]: Unsupervised, Your Honor.
"[Counsel standing in for the father's attorney]: At the parents' discretion.
"[Counsel standing in for guardian ad litem]: I'm just -- I'm texting her.
"[The father]: What would be the parameters for supervision?
"[Counsel standing in for the father's attorney]: That'd be eyes on, ears on, supervised.
"THE COURT: So it would [be] supervised visitation with the time to be worked out between the parents; is that correct?
"[The mother's counsel]: Yes, Your Honor.
"THE COURT: Supervision does mean eyes on and ears on, as [counsel standing in for the father's attorney] just indicated.
"....
"THE COURT: Ms. Ghee [standing in for the guardian ad litem], you're in contact with [the guardian ad litem]?
"[Counsel standing in for the guardian ad litem]: Yes, and she does recommend that the mother have supervised visitation.
"THE COURT: And she is in agreement to this?
"[Counsel standing in for the guardian ad litem]: Yes."
Following that exchange, DHR's attorney confirmed that it was dismissing its petition seeking custody based upon the agreement of the parents and the guardian ad litem's approval of that agreement. The juvenile court then asked the mother if she had heard what had been announced as an agreement and asked if that was, in fact, her agreement, to which the mother responded in the affirmative. The juvenile court asked the mother if she had any questions, and the mother responded in the negative. At that time, DHR's attorney asked: "If [the mother] wanted to ... have primary placement of the child, she would have to come back to the Court and file for that?" The juvenile court responded affirmatively, and then the following exchange occurred:
"[DHR's attorney]: I just want to make sure that's clear, you know. Which I know, you know, everything might get hunky dory here in about six months or a year, and I just want to make sure they know that the father just can't say, ‘Okay. Here, you can have the child.’
"THE COURT: And y'all do understand that; correct?
"[The father]: I understand.
"THE COURT: Do you understand that, too?
"[The mother]: Yes."
The mother asserts on appeal that there had been no meeting of the minds with regard to whether the father would exercise joint physical custody of the child along with the mother or would be awarded sole physical custody and also as to whether the mother's visitation with the child would be supervised. We note, however, that the mother failed to raise this argument before the juvenile court. She asserted before the juvenile court only that she had misunderstood that the order was not being entered on a temporary basis. Indeed, the mother testified at the hearing on her postjudgment motion that it was her understanding that the father was to have sole physical custody of the child, albeit on a temporary basis. Thus, we cannot consider the mother's argument on this point. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992) ("[An appellate court] cannot consider arguments raised for the first time on appeal; rather, [its] review is restricted to the evidence and arguments considered by the trial court.").
The mother also argues on appeal that there was no meeting of the minds at the October 9, 2018, hearing with regard to the permanence of the custody award. The mother specifically asserts that she was pressured into accepting an agreement that she did not understand.
" ‘In a case in which the evidence is presented to the trial court ore tenus, such as this one, the findings of the trial court are presumed correct and will not be set aside unless they are plainly and palpably wrong or unjust.’ Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala. 1991). ‘Furthermore, where the trial court does not make findings of fact, it will be assumed that the trial court made those findings that were necessary to support its judgment, unless the findings would be clearly erroneous.’ Ex parte Walters, 580 So.2d 1352, 1354 (Ala. 1991)."
Brown v. Brown, 26 So.3d 1210, 1213–14 (Ala. Civ. App. 2007).
At the November 5, 2018, hearing on the mother's postjudgment motion, the mother's attorney argued that the mother had not been aware that the judgment entered on October 9, 2018, was a permanent custody judgment and that the mother had believed that she was agreeing to a pendente lite custody order. The mother testified that she did not understand that the agreement entered into at the October 9, 2018, hearing would result in a permanent custody judgment. She stated that it was her understanding that it would be only a temporary order. She testified that she believed that the agreement was only on a temporary basis because the father had applied for temporary custody. The mother admitted, however, that, once she left the courthouse on October 9, 2018, it was her understanding that she would not return for a trial that had been previously set for November 26, 2018.
Kelly Klein, the advocate coordinator for CASAs, testified that she had been present at the October 9, 2018, hearing. According to Klein, she had had a discussion with the mother that day regarding the mother's agreement that the father be awarded sole physical custody so that the mother could travel to Texas. She stated that she recalled having discussed with the mother that custody of the child would be awarded to the father so that the case would be closed. Klein stated that she recalled discussing with the mother that, following the court's acceptance of that agreement, DHR would no longer be involved in the case. She testified that she had confirmed with the mother in that conversation that they would not return to court and that the case would be closed, and, according to Klein, she felt confident that the mother understood those terms. Klein confirmed that temporary custody was never mentioned and that she did not hear anyone say "pendente lite" on the date of the hearing.
Laura Miller, the CASA worker who was assigned to the child, testified that she was also present on October 9, 2018. She stated that she recalled the conversation that had taken place between the mother and Klein on that date and that Klein had confirmed with the mother that the child would go to the father in Georgia and that the case would be closed. Miller testified that she and Klein had discussed with the mother that the case would be closed and that the mother would have to petition to have anything else done at a later time. She testified that she and the mother had spoken several times and that the mother appears to be very intelligent; Klein stated that she did not have any reason to believe that the mother did not understand the terms of the agreement as represented at the October 9, 2018, hearing.
Section 34-3-21, Ala. Code 1975, provides that "[a]n attorney has authority to bind his or her client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court." In Pennsylvania Life Insurance Co. v. Green, 367 So.2d 463, 467-68 (Ala. Civ. App. 1978), this court upheld a settlement agreement that had allegedly been reached by the parties based on our determination that the evidence supported the trial court's judgment that an agreement had been reached. We determined that testimony indicated the terms of the agreement that had been reached. Id. at 467. This court observed in Porter v. Porter, 441 So.2d 921, 923 (Ala. Civ. App. 1983), that, "[i]f a party could repudiate an oral agreement which was stated in open court and orally approved by the court, it would inevitably have a chilling effect upon all settlements made the day of a trial, which is an effect clearly contrary to established policy favoring settlement among litigants." This court confirmed in Porter that an oral agreement that had been presented in open court was binding despite the failure to reduce the same to writing. Id. at 923-24.
In the present case, the juvenile court determined that the mother's postjudgment motion was due to be denied, largely because of the transcript of the October 9, 2018, hearing, at which DHR's attorney stressed to the mother that, should she wish to regain primary placement of the child, she would be required to file a new petition seeking custody. We conclude that the juvenile court's order denying the mother's postjudgment motion is supported by the evidence. Despite the mother's assertion at the hearing on her postjudgment motion that she misunderstood the permanency of the agreement at the October 9, 2018, hearing, her affirmation to the terms of that agreement at the October 9, 2018, hearing belies that assertion. The juvenile court could have properly considered the mother's affirmation that she understood the agreement, her negative response when asked if she had any questions regarding the agreement, and her affirmative response when asked if she understood that she would have to return to court if she wanted to seek primary placement of the child. Moreover, the juvenile court could have considered the testimony at the hearing on the mother's postjudgment motion that the mother had discussed the terms of the agreement with Klein and Miller, that she had understood and agreed to those terms, and that the mother was intelligent and there was no indication that she did not understand the terms of the agreement she had entered into on October 9, 2018. Because the juvenile court's decision to deny the mother's postjudgment motion is supported by the evidence presented, we conclude that the parties' agreement is not due to be set aside. Accordingly, we affirm the trial court's judgment.
AFFIRMED.
Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur.