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Brock v. Herd

Alabama Court of Civil Appeals

July 24, 2015

Kyle Joseph Brock
v.
Nell Herd and Roger Herd

         Released for Publication April 28, 2016.

          Appeal from Talladega Circuit Court. (DR-10-82). Jeb Fannin, Trial Judge.

         For Appellant: Simone Horn, Talladega.

         For Appellee: S. Dale Price, Sylacauga.

         THOMAS, Judge. Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

          OPINION

Page 1162

          THOMAS, Judge.

         Kyle Joseph Brock (" the father" ) appeals from a judgment of the Talladega Circuit Court (" the circuit court" ) denying his petition to set aside a prior judgment awarding custody of K.J.B. (" the child" ) to Nell Herd and Roger Herd (" the grandparents" ).

         The record on appeal, which is sparse, reveals the following relevant facts and procedural history. The father and Kelly Nicole Herd (" the mother" ) are the unmarried parents of the child, who was born on August 1, 2007. On December 22, 2009, the grandparents filed in the Talladega Juvenile Court (" the juvenile court" ) a petition seeking an adjudication of the paternity of the child and custody of the child. Attached to the grandparents' petition was an answer and waiver and acceptance of service from the mother and the father that stated, in part, that they " admit[ted] each and every allegation contained in the petition." On February 16, 2010, the juvenile court transferred the grandparents' petition to the circuit court.[1] On February 25, 2010, the circuit court entered a judgment adjudicating the father as the child's legal father, awarding custody of the child to the grandparents, awarding the father standard visitation, and ordering the father to pay monthly child support.

         On January 22, 2015, the father filed a motion for relief from the circuit court's judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P., in which he asserted that the circuit court had lacked subject-matter jurisdiction

Page 1163

to adjudicate paternity and to decide the related issues of the care, custody, and control of a child born to unmarried parents. The circuit court entered an order on February 11, 2015, denying the father's Rule 60(b)(4) motion.[2] The father filed a notice of appeal to this court on March 13, 2015. In his brief on appeal, the father argues that his Rule 60(b)(4) motion should have been granted because, he says, the circuit court lacked jurisdiction (1) to adjudicate the paternity of the child and (2) to determine whether the child was dependent.

         We first note that " [o]ur review of the grant or denial of a Rule 60(b)(4) motion is de novo; such a motion challenges the underlying judgment as being void, so the question of the validity of the judgment is a purely legal one in which discretion has no place." Burgett v. Porter, [Ms. 2130889, April 10, 2015] 180 So.3d 20, 21, (Ala.Civ.App. 2015) (citing Northbrook Indem. Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala. 2000); and General Motors Corp. v. Plantation Pontiac-Cadillac, Buick, GMC Truck, Inc., 762 So.2d 859, 861 (Ala.Civ.App. 1999)). Additionally, although the father's Rule 60(b)(4) motion was filed almost five years after the entry of the circuit court's judgment, " a [Rule 60(b)(4)] motion for relief from a void judgment is not governed by the reasonable-time requirement of Rule 60(b)" and can be filed at any time. Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 643 (Ala. 2003).

         We now address the father's argument that the circuit court lacked jurisdiction to adjudicate the child's paternity. As the primary support for this argument, the father, apparently citing to § 12-15-115, Ala. Code 1975, states that " a juvenile court shall have exclusive original jurisdiction 'in proceedings to establish paternity of a child born out of wedlock.'" However, as the grandparents point out in their brief, § 12-15-115, a part of the current Alabama Juvenile Justice Act (" the AJJA" ),[3] actually provides: " (a) A juvenile court shall also exercise original jurisdiction of the following civil proceedings: ... (6) Proceedings to establish parentage of a child pursuant to the Alabama Uniform Parentage Act, Chapter 17 of Title 26." (Emphasis added.) Compare former ...


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