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J.S. v. S.L.

Alabama Court of Civil Appeals

July 28, 2017

J.S.
v.
S.L.

         Appeals from Fayette Juvenile Court (JU-15-43.01 and JU-15-43.02)

          THOMPSON, Presiding Judge.

         On July 10, 2015, S.L. ("the paternal grandmother") filed in the Fayette Juvenile Court ("the juvenile court") a petition alleging that R.T.N., the minor child of K.N. ("the father") and J.S. ("the mother"), was dependent and seeking an award of custody of the child. That action was assigned case number JU-15-43.01 ("the .01 action"). The juvenile court entered an order in the .01 action on July 10, 2015, that awarded the paternal grandmother pendente lite custody of the child.

         The juvenile court conducted a hearing in August 2015. The record contains an unsigned, handwritten order in the .01 action, to which the juvenile court later referred as having been "entered, " that stated that "temp. custody" was awarded to the paternal grandmother on "08/19/2015." On August 19, 2015, the juvenile court rendered a separate order in the .01 action in which it found the child to be dependent and awarded "temporary custody" to the paternal grandmother. That order is date-stamped as having been filed in the juvenile-court clerk's office on August 31, 2015. However, the clerk of the juvenile court did not enter that order on the case-action summary until January 6, 2016. The order became effective upon its entry on the case-action summary. Rule 58, Ala. R. Civ. P.; D.J.G. v. F.E.G., 91 So.3d 69, 73 (Ala. Civ. App. 2012); and Dudley v. State Dep't of Human Res., 555 So.2d 1121, 1122 (Ala. Civ. App. 1989).

         On January 22, 2016, the mother filed in the .01 action a "counter-petition" seeking the return of custody of the child. The record indicates that the mother's January 22, 2016, petition was treated as a modification petition that initiated a new action, and the juvenile court reassigned that action case number JU-15-43.02 ("the .02 action").

         Comments by the parties and the juvenile court during the hearing on the merits of the .02 action indicate that the father also filed a petition seeking the return of custody of the child, and his action was assigned case number JU-15-43.03 ("the .03 action"). The record contains no documents or orders from the .03 action. The father is not a party to these appeals, and this opinion sets forth facts pertaining to the father only as they relate to the issues raised in the mother's appeals.

         The juvenile court conducted an ore tenus hearing regarding the .02 action and the .03 action on September 21, 2016.[1] On December 19, 2016, the juvenile court entered a judgment in the .02 action in which it determined that the child remained dependent and denied the mother's petition for the return of custody of the child.

         The mother filed a postjudgment motion on December 30, 2016, that indicated it was filed in reference to the .01 action and the .02 action. That motion, as it pertained to the .02 action, was deemed denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P., Rule 1(B), Ala. R. Juv. P., and Rule 4(a)(1), Ala. R. App. P., on January 13, 2017. The mother timely appealed the judgment entered in the .02 action on January 26, 2017. Rule 4(a)(1), Ala. R. App. P.; Rule 28(C), Ala. R. Juv. P. This court assigned that appeal number 2160282.

         However, the mother's appeal in appeal number 2160281, which is taken in the .01 action, is not timely. The juvenile court's initial dependency order, rendered on August 19, 2015, but not entered until January 6, 2016, ("the January 6, 2016, order"), was sufficiently final to support an appeal. The mother has incorrectly referred to that order as a "pendente lite" order in asserting her arguments in her appellate brief. This court has explained the difference between a pendente lite custody award and an award of temporary custody as follows:

"'A pendente lite custody order is an order that is effective only during the pendency of the litigation in an existing case and is usually replaced by the entry of a final judgment. Hodge v. Steinwinder, 919 So.2d 1179, 1182 (Ala. Civ. App. 2005). Pendente lite custody orders allow a trial court to take into consideration developments in the lives of the child and the parties that naturally occur during the gap in time between the filing of an action and the final hearing in the matter. Id.
"'However, a "temporary custody award" or a "temporary order" as to custody is a "final" custody award or judgment. Despite its name, a temporary order as to custody is intended to remain effective until a party seeks to modify it. It may be modified if the trial court reviews the case and determines that changed circumstances that warrant a modification have come into existence since the last custody award. 919 So.2d at 1182-83. Such an award is not a pendente lite award. Id.'

"T.J.H. v. S.N.F., 960 So.2d 669, 672 (Ala. Civ. App. 2006)."

         P.A. v. L.S., 78 So.3d 979, 981 (Ala. Civ. App. 2011).

         This court has recently held that "[a]n order is final and appealable if it contains a formal dependency determination coupled with a temporary order of custody that is incidental to that determination and subject to further review." A.J. v. E.W., 167 So.3d 362, 366 (Ala. Civ. App. 2014). In this case, the juvenile court, in the January 6, 2016, order, awarded temporary custody to the paternal grandmother after finding the child dependent. Accordingly, we conclude that that order was sufficiently final to support an appeal of that order, see A.J. v. E.W., supra, and that it constituted an award of temporary custody of the child. P.A. v. L.S., supra.

         The mother did not timely appeal the January 6, 2016, order within the 14 days allowed by Rule 4(a)(1), Ala. R. App. P., and Rule 1, Ala. R. Juv. P. The mother's December 30, 2016, postjudgment motion was not filed within 14 days of the entry of that order, see Rule 1(B), Ala. R. Juv. P., and, therefore, it did not operate to extend the time for taking an appeal. We therefore dismiss the mother's January 26, 2017, appeal in appeal number 2160281, which was filed in reference to the January 6, 2016, order entered in the .01 action.

         The mother first argues on appeal that the juvenile court erred in awarding the paternal grandmother pendente lite custody in its July 10, 2015, order entered in the .01 action. However, a pendente lite order cannot support an appeal, and it does not become appealable upon the entry of a final order or judgment. Morgan v. Morgan, 183 So.3d 945, 966 (Ala. Civ. App. 2014); see also Ex parte J.P., 641 So.2d 276, 278 (Ala. 1994) ("Pendente lite orders are generally entered only during the pendency of the litigation and are usually replaced by a final order or judgment that is entered at the end of the litigation."). The mother may not obtain review of the July 10, 2015, pendente lite order in this appeal.

         The mother argues that the procedural and notice issues she raised in her appellate brief concerning the July 10, 2015, pendente lite order were not "cured" by the manner in which the juvenile court conducted the August 19, 2015, dependency hearing.[2] The mother's argument focuses on the August 19, 2015, hearing, and not on an order entered by the juvenile court; that argument seems to pertain to her contention that she should have received notice before the entry of the July 10, 2015, order. Further, the mother failed to timely appeal the January 6, 2016, order that was based on the evidence presented at the August 19, 2015, dependency hearing. Accordingly, we do not reach those arguments.

         The mother next argues that the juvenile court improperly determined that the mother had the burden of proof in seeking to regain custody of the child in the .02 action. In its December 19, 2016, judgment in the .02 action, the juvenile court found that the mother had failed to meet the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984). The mother also raises two additional arguments, both of which relate to her argument concerning the burden of proof. Specifically, the mother contends that the juvenile court failed to presume that she had a prima facie right to custody of the child and that the juvenile court erred in determining that she had to meet the McLendon standard in order to regain custody of the child. Those arguments are interrelated, and we address them together.

         In making her arguments on those issues, the mother contends that the January 6, 2016, order was a pendente lite order and did not constitute a final order that would warrant the filing of a modification action in order for her to regain custody and that would not require her to meet the McLendon standard to regain custody. As has already been explained in this opinion, however, the January 6, 2016, order was a "temporary order" that was sufficiently final to support an appeal ...


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