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M.M. v. K.J.Z.

Alabama Court of Civil Appeals

September 29, 2017

M.M. and R.F.
v.
K.J.Z. and E.M.Z.

         Appeals from Jefferson Probate Court (2016-228480, 2016-228481)

          THOMAS, Judge.

         M.M. ("the father") and R.F. ("the paternal great-grandmother") seek review of the judgment dismissing their Rule 60(b), Ala. R. Civ. P., motions, which sought to have set aside the judgments entered by the Jefferson Probate Court

          ("the probate court") granting the petitions of K.J.Z. ("the adoptive father") and E.M.Z. ("the adoptive mother") to adopt M.R.M. and S.M. ("the children"), the children of the father and M.J.S. ("the mother"). We reverse the judgment of the probate court.

         In February 2016, in case number CS-15-900438.01 ("the custody case"), the Jefferson Juvenile Court ("the juvenile court") entered a judgment awarding the paternal great-grandmother, the father, and the mother joint custody of the children pursuant to an agreement between those parties. The February 2016 judgment modified an earlier judgment of the juvenile court. The record indicates that the adoptive mother appeared in the custody case as an attorney for the father, who is her nephew.

         In April 2016, the adoptive mother filed in the juvenile court verified ex parte emergency petitions for custody of each child; those petitions were assigned case number JU-16-659.01 and case number JU-16-660.01, respectively ("the dependency petitions"). In the dependency petitions, the adoptive mother alleged that the mother and the father had abandoned the children in 2014 and 2015, respectively; that the children were presently in the custody of the paternal great-grandmother; that the Department of Human Resources was investigating sexual-abuse allegations made against the paternal great-grandmother's live-in paramour, C.H.; that the paternal great-grandmother had one or more indicated cases of physical abuse relating to her abuse of one of her own children and a grandson; and that the children's paternal grandmother, Me.M., who also resided with the paternal great-grandmother, had a history of drug-related charges and had a pending criminal charge. The juvenile court held a hearing on the dependency petitions on April 11, 2016, at which the adoptive mother and the paternal great-grandmother appeared; neither the mother nor the father appeared. After the hearing, the juvenile court entered an order awarding what it described as ex parte custody of the children to the adoptive mother. The mother, the father, and the paternal great-grandmother were awarded visitation rights, and a hearing was set for June 28, 2016. Despite the allegations of abandonment the adoptive mother had relied upon in the dependency petitions, the adoptive mother, with the assistance of law enforcement, retrieved the children from the custody of the father.

         On May 10, 2016, the adoptive mother and the adoptive father, armed with the ex parte custody order, filed in the probate court petitions seeking to adopt the children. In the petitions, the adoptive mother and the adoptive father indicated that the whereabouts of the mother were unknown; they listed an address for service of the father. However, the adoptive mother and the adoptive father also filed an affidavit stating that they had exhausted all known means to locate the mother and the father; as a result, the mother and the father were served by publication.[1] No notices of the adoption actions were served on the paternal great- grandmother. Thus, neither the mother, nor the father, nor the paternal great-grandmother appeared in the adoption actions or contested the proposed adoptions. The probate court entered final judgments of adoption on August 23, 2016.

         On September 1, 2016, the juvenile court held a hearing in the dependency cases. On that same date it entered an order that, among other things, awarded visitation to the paternal great-grandmother, the mother, and the father. The order also indicated that the dependency cases would be set for a dependency trial, although the date of that trial was "to be determined." On or about September 12, 2016, the adoptive mother filed in the juvenile court a motion to dismiss the dependency cases, explaining in the motion that the children had been adopted and attaching the August 23, 2016, adoption judgments.

         On September 23, 2016, the father and the paternal great-grandmother filed joint motions in the probate court, one in each adoption action, seeking to contest the adoptions and to have the adoption judgments set aside based, in part, on fraud they alleged had been committed on them and on the court by the adoptive mother. In addition, they contended in those motions that their due-process rights had been violated because they had not received notice of the pending adoptions. Thus, although not labeled as such, the motions were filed pursuant to Rule 60(b). See Ex parte Lang, 500 So.2d 3, 4 (Ala. 1986) (construing a motion as a Rule 60(b) motion based on its substance). On October 3, 2016, the adoptive mother moved to dismiss the Rule 60(b) motions, arguing that the contests were untimely, that the father had been properly served by publication, and that the paternal great-grandmother lacked "standing" to file contests to the adoptions.

         The father and the paternal great-grandmother filed "verified" responses to the motions to dismiss; however, only the paternal great-grandmother verified the responses. In the responses, the paternal great-grandmother stated specifically that she had had custody of the children by virtue of the February 2016 judgment in the custody case and that she, therefore, was entitled to notice of the adoption actions. In addition, the father and the paternal great-grandmother presented documents purporting to be text messages between the father and the adoptive mother during April 2016, indicating that the adoptive mother had had a means of contacting the father to determine his whereabouts, and otherwise contended that the adoptive mother had committed fraud on the mother, the father, the paternal great-grandmother, and both the juvenile court and the probate court.

         On February 24, 2017, the probate court, without holding an evidentiary hearing, entered a single judgment, which was entered in both adoption actions, dismissing the Rule 60(b) motions filed by the father and the paternal great-grandmother. In that judgment, the probate court stated that the paternal great-grandmother lacked "standing" to contest the adoptions and found that the father had been properly served by publication. The probate court apparently further concluded that the motions were untimely because they had been filed "outside the 14-day appeal time following a final [judgment] of adoption." Thus, the order granted the adoptive mother's motion to dismiss the Rule 60(b) motions.

         As noted above, the father and the paternal great-grandmother seek review of the judgment dismissing their Rule 60(b) motions. They filed petitions for the writ of mandamus in this court on April 7, 2017. However, because review of an order denying a Rule 60(b) motion is by appeal, see T.K.W. v. State Dep't of Human Res. ex rel. J.B., 119 So.3d 1187, 1194 (Ala. Civ. App. 2013), this court has elected to treat their petitions as appeals. See Weaver v. Weaver, 4 So.3d 1171, 1173 (Ala. Civ. App. 2008).

         The probate court's conclusion that the Rule 60(b) motions were untimely is clearly incorrect. The motions were filed on September 23, 2016, approximately one month after the entry of the adoption judgments. Insofar as the motions alleged that the adoptive mother had committed fraud, the motions were Rule 60(b)(3) motions, which must be filed within four months of the entry of the challenged judgments.[2]Insofar as the motions alleged that the adoption judgments should be set aside because of a lack of due process, the motions sought relief under Rule 60(b)(4) on the basis that the adoption judgments were void, see Lett v. Weaver, 79 So.3d 625, 627 (Ala. Civ. App. 2010) (construing a challenge to a lack of statutory notice as an argument that a judgment was void for lack of due process under Rule 60(b)(4)), and a motion seeking relief from a void judgment may be brought at any time. Ex parte McCrory & Williams, Inc., 155 So.3d 1018, 1020 (Ala. Civ. App. 2014). The motions were timely filed.

"'The standard of review on appeal from an order granting [or denying] relief under Rule 60(b)(4), Ala. R. Civ. P. ("the judgment is void"), is not whether the trial court has exceeded its discretion. When the decision to grant or to deny relief turns on the validity of the judgment, discretion has no field of operation. Cassioppi v. Damico, 536 So.2d 938, 940 (Ala. 1988). "If the judgment is void, it is to be set aside; if it is valid, it must stand.... A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner ...

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