July 24, 2015
Kyle Joseph Brock
Nell Herd and Roger Herd
for Publication April 28, 2016.
from Talladega Circuit Court. (DR-10-82). Jeb Fannin, Trial
Appellant: Simone Horn, Talladega.
Appellee: S. Dale Price, Sylacauga.
Judge. Thompson, P.J., and Pittman, Moore, and Donaldson,
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" ).
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. 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.
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
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. 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.
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).
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" ), 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 § 12-15-31(2), Ala.
Code 1975 (conferring " exclusive original
jurisdiction" on the juvenile court to establish
paternity of children born out of wedlock (emphasis added)).
" When interpreting a statute, a court must first give
effect to the intent of the legislature. ...
" ... To discern the legislative intent, the Court must
first look to the language of the statute. If, giving the
statutory language its plain and ordinary meaning, we
conclude that the language is unambiguous, there is no room
for judicial construction."
City of Bessemer v. McClain, 957 So.2d 1061, 1074
not escape our attention that the sections of the AJJA
immediately preceding and following § 12-15-115 grant a
juvenile court exclusive original jurisdiction over various
proceedings, see § 12-15-114, Ala. Code 1975, and §
12-15-116, Ala. Code 1975. Clearly, had the legislature
intended to grant a juvenile court exclusive original
jurisdiction over an adjudication of paternity, it most
certainly could have
done so. Although it reasonably could be argued, in light of
the inclusion of the term " exclusive" in the
surrounding sections of the AJJA and in the predecessor
statute referenced above, see former § 12-15-31(2), that
the omission of the term " exclusive" in §
12-15-115 was unintentional, " [c]ourts ... may not
interpret statutes to compensate for omissions. '"
[I]t is not the office of the court to insert in a statute
that which has been omitted[; ] ... what the legislature
omits, the courts cannot supply." '" Ex
parte Christopher, 145 So.3d 60, 66 (Ala. 2013) (quoting
Pace v. Armstrong World Indus., Inc., 578 So.2d 281,
284 (Ala. 1991), quoting in turn 73 Am.Jur.2d Statutes §
§ 12-15-115 provides that a juvenile court " shall
... exercise original jurisdiction" over proceedings to
determine parentage pursuant to the Alabama Uniform Parentage
Act, codified at § 26-17-101 et seq., Ala. Code 1975
(" the Parentage Act" ). Section 26-17-104, Ala.
Code 1975, a part of the Parentage Act, provides, in its
" A circuit or district court of this state or any other
court of this state, as provided by law, shall have original
jurisdiction to adjudicate parentage pursuant to this chapter
and may determine issues of custody, support, and visitation
incidental to a determination of parentage. If an issue of
non-parentage is raised in a domestic relations action in
this state, a court of this state having jurisdiction over
the domestic relations action shall have the authority to
adjudicate parentage or non-parentage pursuant to this
(Emphasis added.) Based upon the plain language of §
26-17-104 and the omission of the term " exclusive"
from § 12-15-115, we conclude that the AJJA does not
vest juvenile courts with exclusive original jurisdiction to
adjudicate paternity, and, thus, the circuit court in the
case before us properly exercised jurisdiction to adjudicate
the paternity of the child.
father next argues that the circuit court's judgment is
void because that court lacked jurisdiction to find the child
dependent. Section 12-15-114(a) provides:
" A juvenile court shall exercise exclusive original
jurisdiction of juvenile court proceedings in which a child
is alleged to have committed a delinquent act, to be
dependent, or to be in need of supervision. A dependency
action shall not include a custody dispute between parents.
Juvenile cases before the juvenile court shall be initiated
through the juvenile court intake office pursuant to this
father claims in his appellate brief that the
grandparents' action was actually a dependency action
masked under the " pretense of a paternity and custody
action." We disagree.
grandparents' 2009 petition did not allege that the child
was dependent. Instead, it requested a determination of
paternity and an award of custody based on the parents'
consent. It is well established that
" '[j]uvenile courts are purely creatures of statute
and have extremely limited jurisdiction. See Ex parte K.L.P.,
868 So.2d 454, 456 (Ala.Civ.App. 2003). That limited
jurisdiction allows a juvenile court to make a disposition of
a child in a dependency proceeding only after finding the
child dependent. V.W. v. G.W., 990 So.2d 414, 417
(Ala.Civ.App. 2008) (quoting K.B. v. Cleburne County
Dep't of Human Res., 897 So.2d 379, 389
(Ala.Civ.App. 2004) (Murdock, J., concurring in the result))
(" '[I]n order to make a disposition of a child in
the context of a dependency proceeding, the child must in
fact be dependent at the time of that disposition.'"
" T.B. v. T.H., 30 So.3d 429, 431 (Ala.Civ.App.
M.D. v. S.C., 150 So.3d 210, 212 (Ala.Civ.App.
2014)(emphasis omitted). Thus, as this court has consistently
held, " once the juvenile court recognize[s] that the
case d[oes] not involve a question of dependency, it los[es]
jurisdiction over the remaining subject matter, i.e., the
dispute over the custody of the child." K.C.G. v.
S.J.R., 46 So.3d 499, 504 (Ala.Civ.App. 2010) (holding
that a juvenile court's judgment awarding custody of a
child to a nonparent after electing to treat a dependency
petition as a custody dispute was void); see also T.B. v.
T.H., 30 So.3d 429, 433 (Ala.Civ.App. 2009)(" [T]he
[juvenile-court] judge had no jurisdiction to adjudicate
custody of the child in the juvenile court once he determined
that the case was not a dependency case." ).
J.A.P. v. M.M., 872 So.2d 861 (Ala.Civ.App. 2003), this
court, after first noting that the record on appeal contained
no petition or allegations of dependency, concluded that,
even though the parties had consented to transfer the
determination of custody of the child to the juvenile court,
" the facts and procedural history of this case indicate
that, with regard to the [child at issue], this case was in
the nature of a custody dispute rather than a dependency
action." 872 So.2d at 866. We further noted that "
[d]eterminations of child custody are matters within the
discretion of the [circuit] court, and such determinations
should not be set aside absent an abuse of discretion."
Id. See also S.T.S. v. C.T., 746 So.2d
1017, 1021 (Ala.Civ.App. 1999)(" When a case is more a
custody case than a determination-of-dependency case, and the
court relied on the dependency statute to find a child to be
dependent and to award custody to a nonparent, that ruling
will not stand." (citing C.P. v. M.K., 667
So.2d 1357 (Ala.Civ.App. 1994))). The juvenile court in the
present case, therefore, properly transferred the
grandparents' action to the circuit court.
discussed above, the grandparents' petition did not
contain allegations that the child was dependent.
Additionally, the circuit court's judgment did not
include a finding of dependency. The record further indicates
that the father acquiesced to the grandparents' petition
for custody. Thus, the issue whether the child was dependent
as defined by § 12-15-102(8), Ala. Code 1975, was not
presented to the circuit court. Therefore, we conclude that
the grandparents' action was a custody case as opposed to
a dependency action; accordingly, that action was properly
before the circuit court. For that reason, the judgment of
the circuit court awarding custody of the child to the
grandparents is not void.
upon the foregoing, the judgment of the circuit court denying
the father's Rule 60(b)(4) motion is affirmed. The
grandparents' request for an award of attorney fees is
P.J., and Pittman, Moore, and Donaldson, JJ., concur.
The case-action-summary sheet indicates
that the juvenile court transferred the action on its own
The circuit court's order indicates
that a hearing was held on the father's motion; however,
there is no transcript of the hearing included in the record
The current Alabama Juvenile Justice Act,
§ 12-15-101 et seq., Ala. Code 1975, was enacted by our
legislature in 2008 and became effective January 1,