from Fayette Juvenile Court (JU-15-43.01 and JU-15-43.02)
THOMPSON, Presiding Judge.
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
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).
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
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.
juvenile court conducted an ore tenus hearing regarding the
.02 action and the .03 action on September 21,
2016. 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.
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
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.
"T.J.H. v. S.N.F., 960 So.2d 669, 672 (Ala.
Civ. App. 2006)."
v. L.S., 78 So.3d 979, 981 (Ala. Civ. App. 2011).
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.
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.
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.
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. 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.
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.
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 ...