Opinion
CL-2023-0110
09-29-2023
Thomas Rhett McAdams, Sr. v. Thomas Rhett McAdams, Jr., and Olivia Grace Wilkinson
Appeal from Mobile Circuit Court (CV-22-901099)
MOORE, JUDGE
Thomas Rhett McAdams, Sr. ("the paternal grandfather"), appeals from a summary judgment entered by the Mobile Circuit Court ("the trial court") in favor of Thomas Rhett McAdams, Jr. ("the father"), and Olivia Grace Wilkinson ("the mother"), on the paternal grandfather's claim seeking visitation with P.R.M. ("the child"), the child of the father and the mother. We affirm the judgment.
Procedural History
On June 29, 2022, the paternal grandfather filed a verified petition in the trial court, seeking an order awarding him visitation with the child, who was born on March 31, 2021. Both the mother and the father were served with the petition, and the trial court appointed a guardian ad litem for the benefit of the child. The mother filed an answer to the petition on July 27, 2022. On November 21, 2022, the mother filed a motion for a summary judgment. The trial court entered an order on December 9, 2022, setting the mother's summary-judgment motion for a hearing on January 6, 2023.
At the January 6, 2023, hearing on the mother's summary-judgment motion, arguments were presented by the paternal grandfather's counsel, the mother's counsel, and the child's guardian ad litem; the father was not present at the hearing and was not represented by counsel. On January 11, 2023, the trial court entered a judgment that states, in pertinent part:
The transcript of the hearing misidentifies the father as the plaintiff and the paternal grandfather as a defendant, presumably based on confusion created by their having the same name, albeit with the paternal grandfather being "Sr." and the father being "Jr." It is clear from the transcript and from the record on appeal as a whole that the paternal grandfather appeared at the hearing with his counsel and that the father did not appear at the hearing and was not represented by counsel.
"The above numbered petition came before the court on the motion for summary judgment filed by respondent, Thomas Rhett McAdams, Jr. Counsel for Respondent/Movant and counsel for Plaintiff appeared, as did the guardian ad litem, Kent Baxley.
"The court heard argument from both counsel and considered the affidavits filed with the [summary-judgment] motion. No affidavits, nor other evidence, was filed or offered by the [paternal grandfather].
"The court finds that, giving all inferences of, (or implied by), the evidence, to the [paternal grandfather's] benefit, the [paternal grandfather] cannot establish each of the necessary elements of the cause of action, and therefore, the petition is due to be dismissed, and the Motion for Summary Judgment granted.
"Therefore, it is ORDERED that the motion for summary judgment is GRANTED. The above numbered petition is hereby DISMISSED."(Capitalization in original.)
On January 25, 2023, the paternal grandfather filed a motion to alter, amend, or vacate the judgment, pursuant to Rule 59, Ala. R. Civ. P. Following the denial of that postjudgment motion on January 30, 2023, the paternal grandfather filed a notice of appeal to this court on February 22, 2023.
The paternal grandfather asserts in his brief on appeal that his postjudgment motion was denied by operation of law. Although he argues that such a denial would have occurred on February 8, 2023, we note that that denial would have occurred on April 25, 2023. See Rule 59.1, Ala. R. Civ. P. (providing that no postjudgment motion filed pursuant to Rule 59 shall remain pending in the trial court for more than 90 days). The State Judicial Information System case-action-summary sheet contains an entry on January 30, 2023, that states "C001 -VACATE OR MODIFY/DISPOSED BY SEPARATE ORDER." (Capitalization in original.) Although the record does not contain a copy of an order entered on January 30, 2023, the motion was denied either on January 30, 2023, or on April 25, 2023, and, thus, the paternal grandfather's February 22, 2023, notice of appeal would have been timely filed in either event. See Rule 4, Ala. R. App. P.
Finality of the Judgment
Before proceeding to the merits, we must address the finality of the judgment entered by the trial court. A final judgment is one that effectively disposes of all of the claims of all of the parties. See Harris v. Thermax, Inc., 876 So.2d 472, 473 (Ala. Civ. App. 2003). In Harris, the trial court in that case entered a summary judgment in favor of all defendants even though one of them had not filed a motion for a summary judgment. This court, relying on Moore v. Prudential Residential Services Ltd. Partnership, 849 So.2d 914, 927 (Ala. 2002), held that the judgment was not final because the trial court in that case could not have entered a summary judgment for the defendant who had not filed a motion for a summary judgment without violating the rights of the plaintiff. In this case, the trial court likewise entered a summary judgment for both the mother and the father, although the father did not file a motion for a summary judgment. We nevertheless conclude that the judgment is final.
In Moore, our supreme court held that a trial court violates the rights of the opposing party when it enters a summary judgment without providing the opposing party notice that it is considering entering a summary judgment and without providing the opposing party an opportunity to be heard. Recently, in Ingenuity International, LLC v. Smith, [Ms. SC-2022-0501, June 16, 2023] So.3d (Ala. 2023), the supreme court, citing Moore, explained that "entering a summary judgment without a motion from the benefiting party, and without providing the other party notice and an opportunity to respond, violates the due-process rights of that other party." However, Moore and Smith do not hold that a trial court may never enter a summary judgment for a nonmoving party; those cases hold only that a summary judgment would be improper if the trial court fails to provide the opposing party notice and an opportunity to be heard before entering the summary judgment. This court has recognized that "[a] summary judgment motion may be granted in favor of a nonmovant ... when all parties had the opportunity to be fully heard on all relevant issues." Mountain Lakes Dist. v. Oak Grove Methodist Church ex rel. Green, 126 So.3d 172, 181 (Ala. Civ. App. 2013).
In this case, the father did not file a motion for a summary judgment, but he did execute an affidavit in support of the motion for a summary judgment filed by the mother in which he set forth certain facts relevant to the determination of whether the paternal grandfather should have visitation with the child and in which the father stated his opinion that such visitation was not in the best interests of the child. The mother served the affidavit on the paternal grandfather when she filed her motion for a summary judgment. The paternal grandfather was fully apprised of the position of the father and given adequate opportunity to respond to the father's affidavit and to all relevant issues relating to the paternal grandfather's claim for visitation with the child. Thus, we conclude that the trial court did not violate the due-process rights of the paternal grandfather by entering a summary judgment in favor of the father, that, unlike in Harris, the summary judgment effectively disposed of all the claims asserted by the paternal grandfather against all of the parties, and that the summary judgment therefore constitutes a final judgment that will support an appeal.
Merits
The paternal grandfather argues that the trial court erred by entering the summary judgment in favor of the mother. This court set out the standard of review following an appeal from the entry of a summary judgment in W.C.R. v. D.A.L., 963 So.2d 99, 101 (Ala. Civ. App. 2007):
"We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A
party moving for a summary judgment must make a prima facie showing 'that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.' Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). If the movant meets this burden, 'the burden then shifts to the nonmovant to rebut the movant's prima facie showing by "substantial evidence."' Lee, 592 So.2d at 1038 (footnote omitted). '[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989); see Ala. Code 1975, § 12-21-12(d)."
The mother argued in her summary-judgment motion that the paternal grandfather could not prove by clear and convincing evidence that visitation with the paternal grandfather would be in the child's best interests, as required by § 30-3-4.2, Ala. Code 1975. Specifically, she asserted that the paternal grandfather could not present clear and convincing evidence indicating that "[t]he loss of an opportunity to maintain a significant and viable relationship between the [paternal grandfather] and the child has caused or is reasonably likely to cause harm to the child," § 30-3-4.2(e)(2), Ala. Code 1975, or that the paternal grandfather would be "willing to cooperate with the parent or parents if visitation with the child is allowed," § 30-3-4.2(e)(3), Ala. Code 1975, both of which are required for an award of grandparent visitation.
In support of the latter assertion, the mother filed her affidavit in which she stated, among other things, that the paternal grandfather had sent some negative text messages to the father regarding the mother; that he had exhibited contempt and disrespect toward the mother; and that he had exhibited his unwillingness to work with the mother and the father regarding scheduling visitation, which, at one time, was required to be supervised by the paternal grandfather, between the child and the father. The father made similar assertions in his affidavit.
The mother also argued in her summary-judgment motion that the paternal grandfather could not prove that his absence from the child's presence had caused or was likely to cause harm to the child. "Harm" is defined in § 30-3-4.2(a)(2), Ala. Code 1975, as "[a] finding by the court, by clear and convincing evidence, that without court-ordered visitation by the grandparent, the child's emotional, mental, or physical well-being has been, could reasonably be, or would be jeopardized." In her affidavit, the mother stated, among other things, that the paternal grandfather had assisted her and the father financially after the child was born and that he had provided childcare during the week and on some weekend nights but that she remained the child's primary caregiver. She stated that she had moved to Florida with the child on February 11, 2022; that, on that same date, she had filed a petition for custody of the child in the trial court ("the custody action"); that, in the custody action, a pendente lite order had been entered, pursuant to which the paternal grandfather had served as the supervisor of the father's visitation with the child; that, after some difficulties scheduling the visitations pursuant to the pendente lite order, the mother and the father had decided after an incident with the paternal grandfather in May 2022 that he would no longer provide supervision for the father's visitation; and that the child had continued to be healthy and happy, had met all of his developmental milestones, and had suffered no physical, emotional, or mental harm, despite having spent less time with the paternal grandfather.
The paternal grandfather argues on appeal that "there is enough in the record for this court to find sufficient disputed material facts to determine that the trial court's summary judgment is due to be set aside." The paternal grandfather's brief, p. 8. He fails, however, to point to any facts in the record that controvert those presented in the mother's and the father's affidavits indicating that the child had not suffered any harm despite having had less contact with the paternal grandfather and that the child was healthy and happy. Rather, he asserts that the mother's counsel had "incorrectly argued" at the hearing on the summary-judgment motion that expert testimony was required to support a finding of harm and had erred in asserting that the inability of the parties to agree on visitation terms between the child and the paternal grandfather supported a finding that he would be unwilling to cooperate with the parents if he was awarded visitation with the child. He fails, however, to support those assertions with citations to authority, and we decline, therefore, to address them further. See Rule 28(a)(10), Ala. R. App. P., and Salter v. Moseley, 101 So.3d 242, 247 (Ala. Civ. App. 2012).
The paternal grandfather also cites this court's decision in Holloway v. Watson, 279 So.3d 1193 (Ala. Civ. App. 2019), in support of his assertion that the trial court's judgment is due to be reversed. In Holloway, a grandparent sought visitation with a grandchild and asserted in a petition seeking visitation that the loss of an opportunity for the grandparent and the child to maintain a significant and viable relationship was "'reasonably likely to cause harm to the child.'" 279 So.3d at 1195. The grandparent submitted an affidavit in response to a motion to dismiss in which she stated that it was "'crucial'" for the grandchild to have a relationship with the family of the grandchild's mother, who was deceased. Id. The motion to dismiss was treated as a motion for a summary judgment by the trial court, and a summary judgment was entered against the grandparent. On appeal, this court determined that the summary judgment in that case had been entered in error. Id. at 1198. We noted that neither party had presented evidence regarding whether visitation between the grandchild and the grandparent was in the grandchild's best interests, although the grandparent had argued that preventing the grandchild from having contact with the maternal side of the family would harm the child. Id. This court concluded that the entry of the summary judgment in that case was improper because the moving party had failed to demonstrate that there were no genuine issues of material fact. Id.
Unlike in Holloway, the mother in the present case presented affidavit testimony indicating that the child had not suffered any harm as a result of spending less time with the paternal grandfather. We conclude that the mother made a prima facie showing in her motion for a summary judgment that there was no genuine issue of material fact and that the materials attached to her summary-judgment motion properly supported her assertions, thereby shifting the burden to the paternal grandfather to rebut that prima facie showing. See W.C.R., supra. Rule 56(e), Ala. R. Civ. P., provides, in pertinent part, that,
"[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for the trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against him."
The trial court observed in its judgment that the paternal grandfather had failed to present any evidence in response to the mother's summary-judgment motion and the exhibits thereto. On appeal, the paternal grandfather fails to point to any specific facts showing that there is a genuine issue for trial. Accordingly, we cannot conclude that the trial court erred in entering a summary judgment in favor of the mother.
The paternal grandfather also argues that the trial court's judgment is due to be reversed based on its failure to make findings of fact in accordance with § 30-3-4.2(f), Ala. Code 1975. In support of his argument, he cites East v. Adkins, [Ms. 2201052, May 6, 2022]So. 3d (Ala. Civ. App. 2022), in which this court reversed a judgment awarding grandparent visitation because the only factual finding made by the trial court in that case was that the parties had stipulated that the grandparent who was seeking visitation in that case had met her burden under the former grandparent-visitation statute and because the requirements of the applicable grandparent-visitation statute had not been addressed. This court noted that
"the language used in [§] 30-3-4.2(f)[, Ala. Code 1975,] reflects the legislature's intent to 'impress upon the trial courts the importance of weighing all the factors set forth in [§ 30-3-4.2] and of informing this court of the reasoning behind its decision for purposes of facilitating meaningful appellate review.' S.J. v. A.B., 298 So.3d [520, 521 (Ala. Civ. App. 2020)]."___So. 3d at___.
In the present case, unlike in East, the trial court made sufficient findings of fact to allow for this court's meaningful appellate review. Accordingly, we decline to reverse based on § 30-30-4.2(f).
Based on the foregoing, the summary judgment is affirmed.
AFFIRMED.
Thompson, P.J., and Hanson, J., concur.
Fridy, J., concurs in part and concurs in the result, with opinion.
Edwards, J., concurs in the result, without opinion.
FRIDY, Judge, concurring in part and concurring in the result.
I agree that the judgment of the Mobile Circuit Court ("the trial court") is due to be affirmed. However, I believe that the trial court's entry of a summary judgment in favor of Thomas Rhett McAdams, Jr. ("the father"), even though the father did not move for a summary judgment, raises only an issue of potential error by the trial court and not one of finality. Therefore, I do not join in that portion of the main opinion analyzing the finality of the judgment.
In that discussion, the main opinion relies on Harris v. Thermax, Inc., 876 So.2d 472, 473 (Ala. Civ. App. 2003), in which this court held that a judgment on appeal was not final because, even though the trial court in that case had disposed of all of the claims against all of the defendants by entry of a summary judgment, one of the defendants had not sought a summary judgment and, as a result, the claims against that defendant "had not been adjudicated." This court thus dismissed the appeal in that case as being from a nonfinal judgment. Thermax, 876 So.2d at 474.
The Thermax court did not cite authority for its determination that the judgment was not final. In Moore v. Prudential Residential Services Limited Partnership, 849 So.2d 914 (Ala. 2002), one of the opinions on which the Thermax court relied, our supreme court explained that a nonmoving party must "be provided with notice of a summary-judgment motion and be given an opportunity to present evidence in opposition to it." Id. at 927. Because the nonmoving party in Moore was not afforded such notice and opportunity, our supreme court held, the trial court violated the rights of the nonmoving party when it entered the summary judgment on its own. As a consequence, our supreme court reversed the judgment and remanded the case to the trial court. The Moore court did not address the finality of that judgment; indeed, the issue of finality was not broached. See also Giles v. Brookwood Health Servs., Inc., 5 So.3d 533, 555 (Ala. 2008) (explaining, with no discussion of finality of the judgment, that the supreme court has "reversed summary judgments when neither party had filed a summary-judgment motion and also when the losing party had no notice that a summary judgment could be forthcoming and no opportunity to present evidence in opposition to the summary judgment"); Sampson v. HeartWise Health Sys. Corp., [Ms. SC-2022-0847, May 26, 2023] ___So. 3d___ (Ala. 2023) (reversing summary judgment entered in favor of defendants with respect to claims that the defendants did not include in their motion for summary judgment). However, the fact that the supreme court reversed the trial court's judgment rather than dismissing the appeal as having been taken from a nonfinal judgment shows that the supreme court treated the judgment from which the appeal was taken as a final judgment capable of supporting the appeal, not one that lacked finality because claims remained to be adjudicated.
The Thermax court also relied on Eubanks v. McCollum, 828 So.2d 935, 937 (Ala. Civ. App. 2002), in which the trial court entered a judgment as to several named defendants but which did not dispose of the claims against one of the named parties. In that situation, the Eubanks court said, because the order did not dispose of all the claims or determine the rights and liabilities of all the parties to the action, the judgment was not final, and the appeal was, therefore, dismissed. Id.
The Thermax court appears to have conflated two distinct concepts, that of a judgment entered improperly against one of the named defendants because that defendant had not sought a judgment and that of a judgment that simply did not dispose of the claims against a named defendant. It cited no authority supporting its conclusion that a judgment entered improperly as to a defendant who did not move for a summary judgment constituted a nonfinal judgment, and I believe that conclusion was incorrect. Therefore, insofar as Thermax dismissed the appeal as having been taken from a nonfinal judgment, I believe that that case was wrongly decided. In attempting to analyze the finality of the summary judgment by application of what I view as the erroneous principle of finality this court set forth in Thermax, the main opinion perpetuates that mistake.
Here, the judgment in favor of the father and Olivia Grace Wilkinson ("the mother") is a final judgment because it resolves all claims against all parties. See Hamilton v. Connally, 959 So.2d 640, 642 (Ala. 2006) (explaining that a final judgment must dispose of all claims as to all parties and "must put an end to the proceedings and leave nothing for further adjudication"). The question whether the trial court properly entered that summary judgment as to the father when the father did not seek it involves a determination of potential error by the trial court, which is waivable, and not one of finality, which is jurisdictional and not waivable.
In sum, because I do not believe there is an issue regarding the finality of the judgment, I do not join in the main opinion insofar as it analyzes whether the judgment was final. I do, however, concur fully in the remainder of the main opinion, and I concur in the result that the main opinion reaches.