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R.W.S. v. C.B.D.

Alabama Court of Civil Appeals

August 11, 2017

R.W.S.
v.
C.B.D. R.W.S.
v.
C.B.D.

         Appeals from St. Clair Probate Court (No. 2016-353)

          THOMPSON, Presiding Judge.

         On August 11, 2016, C.B.D. ("the stepfather") filed in the St. Clair Probate Court ("the probate court") a petition under the Alabama Adoption Code ("the AAC"), § 26-10A-1 et seq., Ala. Code 1975. In that petition, the stepfather sought to adopt a child born in April 2015 to his wife, A.L.D. ("the mother"), and, in support of that petition, he submitted, among other things, a consent to the adoption executed by the mother that expressed her desire that the stepfather adopt the child. Also in that petition, the stepfather identified R.W.S. as the putative father of the child. See § 26-10A-2(12), Ala. Code 1975 (defining the term "putative father" as "[t]he alleged or reputed father").

         On August 15, 2016, the probate court entered an interlocutory order granting custody of the child to the stepfather, ordering that he provide for the child's support, and scheduling the adoption action for a final hearing. See § 26-10A-18, Ala. Code 1975.

         On September 12, 2016, R.W.S., appearing pro se, filed an objection to the proposed adoption; R.W.S. asserted in that filing that he wanted to "establish his rights" as the father of the child. An attorney appeared on behalf of R.W.S. on December 1, 2016. The probate court received ore tenus evidence at a January 13, 2017, hearing.

         On January 23, 2017, the probate court entered a judgment granting the stepfather's petition to adopt the child and noting that it had denied R.W.S.'s opposition to the proposed adoption. R.W.S., represented by new counsel, filed a postjudgment motion on February 3, 2017.[1] In support of that postjudgment motion, R.W.S. submitted copies of text messages and e-mails between the mother and him, as well as a January 27, 2017, affidavit executed by R.W.S.

         On February 14, 2017, R.W.S. filed an amended motion in which, among other things, he sought relief pursuant to Rule 59(e), Ala. R. Civ. P., and Rule 60(b), Ala. R. Civ. P. R.W.S. submitted another affidavit, dated February 14, 2017, in support of that amended motion.

         On February 17, 2017, the probate court entered an order concluding that R.W.S.'s February 3, 2017, postjudgment motion had been denied by operation of law and denying the February 14, 2017, amended motion. R.W.S. had appealed on February 16, 2017, [2] and this court assigned that appeal number 2160344. Later, on March 31, 2017, R.W.S. filed another notice of appeal, which was assigned appeal number 2160518. In his notice of appeal in appeal number 2160518, R.W.S. indicated that he was appealing the denial of that part of his February 14, 2016, amended motion in which he had sought relief pursuant to Rule 60(b).

         R.W.S. moved to consolidate the two appeals, and this court originally denied that motion on May 31, 2017. Upon reconsideration, this court has granted the motion to consolidate the two appeals and has considered the two appeals together. We note that the briefs R.W.S. submitted in each of the two appeals are virtually identical. The difference in the two appellate briefs arises in appeal number 2150518, in which R.W.S. added a paragraph pertaining to the standard for reviewing a denial of a Rule 60(b) motion.

         R.W.S. argues in his appellate brief that the probate court erred in determining that his February 3, 2017, postjudgment motion was denied by operation of law in appeal number 2060344. The period for timely appealing an adoption judgment of a probate court is 14 days from the entry of the adoption judgment, unless that time is extended by the filing of a timely postjudgment motion.[3] § 26-10A-26(a), Ala. Code 1975. A postjudgment motion taken from a probate court's adoption judgment must be filed within 14 days of that judgment. Ex parte A.M.P., 997 So.2d 1008, 1013 n. 3 (Ala. 2008). Such a postjudgment motion is denied by operation of law if the probate court fails to rule on it within 14 days. Ex parte W.L.K., 175 So.3d 652, 656 n. 1 (Ala. Civ. App. 2015) (citing Ex parte A.M.P., supra).

         R.W.S.'s February 3, 2017, postjudgment motion was timely filed within 14 days of the entry of the January 23, 2017, probate-court judgment approving the adoption. Ex parte A.M.P., supra; Ex parte W.L.K., supra. The February 3, 2017, postjudgment motion could remain pending for 14 days, or until February 17, 2017, and would be deemed denied by operation of law in the absence of a ruling from the probate court. Id. The probate court entered an order on February 17, 2017, the last day on which it could rule on R.W.S.'s February 3, 2017, postjudgment motion, in which it incorrectly determined that the February 3, 2017, postjudgment motion had already been denied by operation of law. In that order, the probate court did not specifically rule on the February 3, 2017, postjudgment motion by denying it or granting it.[4] However, by failing to rule on the February 3, 2017, postjudgment motion by February 17, 2017, the probate court did allow the motion to be denied by operation of law. See Rule 59.1, Ala. Code 1975; § 26-10A-26(a), Ala. Code 1975; Ex parte A.M.P., 997 So.2d at 1013 n. 3; and note 5, infra. Thus, the probate court's incorrect conclusion in its February 17, 2017, order that the February 3, 2017, postjudgment motion had already been denied by operation of law was of no effect. In appeal number 2160344, R.W.S. timely appealed the adoption judgment and the denial of his February 3, 2017, postjudgment motion.[5]

         Although neither party raises the issue, this court must also examine the timeliness of R.W.S.'s February 14, 2017, "amended" motion that purported, in its title, to seek relief pursuant to Rule 59(e), Ala. R. Civ. P., and Rule 60(b), Ala. R. Civ. P. See C & D Logging v. Mobley, 61 So.3d 1067, 1069 (Ala. Civ. App. 2009) (jurisdictional issues, such as timeliness, are of such importance that this court may take notice of them ex mero motu). The substance of a motion governs the manner in which it is to be construed. R.D.J. v. A.P.J., 142 So.3d 662, 666 n. 1 (Ala. Civ. App. 2013). In purporting to seek relief pursuant to Rule 60(b) in the February 14, 2017, amended motion, R.W.S. stated only that "[i]f this amended motion is deemed untimely pursuant to Rule 59, [R.W.S.] moves for relief under Rule 60(b)." R.W.S. made no argument in the February 14, 2017, amended motion pertaining to the various forms of relief from a judgment that are available under Rule 60(b). After examining the substance of the February 14, 2017, amended motion, we conclude that R.W.S. sought only relief available under Rule 59(e). Accordingly, we cannot conclude that any part of the February 14, 2017, amended motion could be argued to be a Rule 60(b) motion. See Burgess v. Burgess, 99 So.3d 1237, 1239 n. 1 (Ala. Civ. App. 2012) ("Although the husband indicated that his motion was filed pursuant to Rule 59, Ala. R. Civ. P., and Rule 60, Ala. R. Civ. P., we conclude that, because the motion did not seek relief pursuant to Rule 60(b), that motion was filed pursuant to Rule 59(e), Ala. R. Civ. P.").

         Further, in his brief submitted to this court in appeal number 2160518, R.W.S., although he includes one paragraph setting forth the general standard of review of a Rule 60(b) motion, makes no argument pertaining to the denial of any part of the February 14, 2017, amended motion that might be argued to be made pursuant to Rule 60(b). It is neither the function nor the duty of this court to create an argument on behalf of an appellant or to perform an appellant's legal research. Swindle v. Swindle, 55 So.3d 1234, 1245 (Ala. Civ. App. 2010) (citing White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008)). R.W.S. has failed to adequately address his apparent contention that the probate court erred in denying that part of his February 14, 2017, amended motion that he contended was made pursuant to Rule 60(b). Accordingly, we affirm the denial of that motion to the extent that it might be argued, as R.W.S. purportedly does in appeal number 2160518, to have requested relief under Rule 60(b).

         As indicated above, R.W.S.'s February 14, 2017, amended motion was one made pursuant to Rule 59(e), Ala. R. Civ. P. R.D.J. v. A.P.J., supra; Burgess v. Burgess, supra. Accordingly, for ease of reference, we refer to R.W.S.'s February 14, 2017, amended motion as an "amended postjudgment motion, " i.e., a motion filed pursuant to Rule 59, for the remainder of this opinion. R.W.S.'s February 14, 2017, amended postjudgment motion, to the extent that it sought relief pursuant to Rule 59, was not filed within 14 days of the entry of the January 23, 2017, adoption judgment; therefore, under different facts, that motion might have been determined to be untimely. See Ex parte A.M.P., 997 So.2d at 1013 n. 3 (noting that a Rule 59 postjudgment motion taken from an adoption judgment must be filed within 14 days of the entry of that judgment). However, because the February 14, 2017, amended motion was filed while the original, and timely, February 3, 2017, postjudgment motion was still pending, the probate court had the discretion to consider that amended postjudgment motion. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So.2d 426, 428 (Ala. 1983) ("[T]he trial court has discretion to allow an amendment to a motion for new trial to state an additional ground after thirty days from the final judgment, if the original motion was timely filed and is still before the court when the amendment is offered."); Slaton v. Slaton, 542 So.2d 1242, 1244 (Ala. Civ. App. 1989) (same); and Kulakowski v. Cowart, [Ms. 2140860, May 20, 2016] ___So. 3D ___, ___ (Ala. Civ. App. 2016) (same).

         In this case, the probate court did not make an express finding regarding whether it had considered the February 14, 2017, amended postjudgment motion. However, the probate court did explicitly deny that motion in its February 17, 2017, order. Therefore, it appears that the probate court exercised its discretion and did consider the February 14, 2017, amended postjudgment motion, and, out of an abundance of caution, we address the issues raised in R.W.S.'s briefs on appeal accordingly. See, generally, Kulakowski v. Cowart, supra (discussing the trial court's discretion to allow an amendment to a postjudgment motion filed after the time allowed under Rule 59(e) but during the time the original postjudgment motion remained pending pursuant to Rule 59.1, Ala. R. Civ. P.).

         R.W.S. contends that the probate court's adoption judgment should be reversed because, he says, the record does not contain a finding that R.W.S. consented or impliedly consented to the adoption. The AAC requires that a child's mother, a child's "presumed father, " or, under certain circumstances, a child's putative father provide express or implied consent to a proposed adoption of the child. § 26-10A-7(a), Ala. Code 1975; see also § 26-10A-2(11) and (12), Ala. Code 1975 (defining the terms "presumed father" and "putative father" for the purposes of the AAC); and § 26-10A- 9, Ala. Code 1975 (explaining the circumstances under which a court may determine that a parent has given implied consent to an adoption of his or her child). Such consent, whether express or implied, must be established by clear and convincing evidence. § 26-10A-7(a), Ala. Code 1975; J.D.S. v. J.W.L., 204 So.3d 386, 387 (Ala. Civ. App. 2016).

         It is undisputed that R.W.S. did not expressly consent to the adoption. The prevailing argument in R.W.S's defense of the adoption action below and in his appellate briefs filed in this court is his contention that his actions do not indicate that he impliedly consented to the adoption. In the February 14, 2017, amended postjudgment motion, R.W.S., in addition to reiterating some of his earlier arguments, set forth different grounds for seeking to set aside the adoption judgment than those he had argued in his original, February 3, 2017, postjudgment motion. In his original, February 3, 2017, postjudgment motion, R.W.S. maintained that he was the child's "putative father" and that his consent to the adoption was required under the AAC. In his February 14, ...


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