J.P.T.
v.
H.T.
Appeal
from Elmore Juvenile Court (CS-09-123.01)
PITTMAN, Judge.
J.P.T.
("the father") appeals from an amended judgment
entered by the Elmore Juvenile Court ("the juvenile
court") on June 30, 2017, in an action brought against
him by H.T. ("the mother"). We dismiss the appeal
with instructions.
In
January 2017, the mother filed a petition in the juvenile
court in which she alleged that, in October 2009, the
juvenile court had entered a judgment ordering the father to
pay child support for their child; that the father had failed
to pay most of the child support he had been ordered to pay
in that judgment; that the father's failure to pay child
support had been willful and contemptuous; that, since the
entry of the October 2009 judgment, there had been a material
change in the parties' financial circumstances that
warranted an increase in the amount of the monthly
child-support payments established by the October 2009
judgment; and that the father's present financial
circumstances would enable him to pay one-half of the
child's medical and dental expenses and to provide
insurance on the father's life, with the child named as
the beneficiary. As relief, the mother sought recovery of the
child-support arrearage and interest thereon; a finding that
the father was in contempt for failing to pay child support;
modification of the previous judgment to increase the amount
of the father's monthly child-support payments, to
provide that the father was obligated to pay one-half of the
child's medical and dental expenses, and to provide that
the father was to provide insurance on the father's life,
with the child named as the beneficiary; and the award of an
attorney fee. Thereafter, the juvenile court, with the
consent of the parties and pursuant to § 12-15-106(b),
Ala. Code 1975, assigned the mother's action to a
referee.[1] The referee held a hearing at which the
parties stipulated that, after applying all the credits to
which the father was entitled, the net amount of the
child-support arrearage the father owed was $31, 998. On
April 20, 2017, pursuant to § 12-15-106(e), Ala. Code
1975, the referee filed her written findings and
recommendations in the juvenile-court clerk's
office.[2] In her findings and recommendations, the
referee found that the net amount of the father's
child-support arrearage was $31, 998; recommended that the
father be ordered to pay that arrearage at the rate of $27.35
per month; recommended that, effective April 1, 2017, the
father's child-support obligation be increased to $472.65
per month; stated that a separate order was contemporaneously
being entered with regard to the mother's claim seeking
an attorney fee; recommended that all other claims for relief
be denied; notified the parties that the referee's
findings and recommendations would not become the judgment of
the juvenile court until they had been ratified by the
juvenile-court judge; and notified the parties that each
party had the right to request a rehearing before the
juvenile-court judge by filing a request for such a rehearing
within 14 days after the filing of the findings and
recommendations.[3]
That
same day, i.e., April 20, 2017, the juvenile-court judge
entered an order ratifying the referee's findings and
recommendations. On April 24, 2017, the mother filed a Rule
59(e), Ala. R. Civ. P., postjudgment motion to alter, amend,
or vacate the April 20, 2017, judgment.[4] On May 2, 2014,
the parties filed a joint motion, pursuant to Rule 1(B), Ala.
R. Juv. P., asking the juvenile court to extend the 14-day
period for it to rule on the mother's postjudgment motion
for an additional 14 days.[5] On May 4, 2017, the 10th day after the
filing of the mother's postjudgment motion, the referee,
rather than the juvenile-court judge, entered an order
purporting to grant the joint motion to extend the 14-day
period for ruling on the mother's postjudgment motion for
an additional 14 days, and, on May 15, 2017, the 21st day
after the filing of the mother's postjudgment motion, the
referee, rather than the juvenile-court judge, entered an
order purporting to deny the mother's postjudgment
motion.
On May
23, 2017, 33 days after the filing of the referee's
findings and recommendations, the mother filed a pleading
titled "Mother's Objection to Referee's
Report" in which she objected to the referee's
findings and recommendations and moved the juvenile court to
enter a judgment finding the father in contempt, requiring
the father to make a lump-sum payment in the amount of $5,
000 to purge himself of his contempt, and requiring the
father to pay the rest of his arrearage at the rate of $325
per month. Thereafter, the juvenile-court judge held a
hearing and, on June 30, 2017, entered an amended judgment
purporting to find that the father was in contempt and
purporting to order that the father be incarcerated until he
had purged himself of his contempt by paying $5, 000 and that
the father pay the balance of the arrearage by making monthly
payments in the amount of $325. On July 5, 2017, the
juvenile-court judge entered an order stating that the
juvenile-court clerk had received a receipt evidencing that
the father had paid $5, 000 and ordering that the father be
released from jail.
On July
12, 2017, the father filed a Rule 59(e) postjudgment motion
challenging the June 30, 2017, amended judgment. On July 14,
2017, the juvenile-court judge entered an order purporting to
deny the father's July 12, 2017, postjudgment motion. On
July 27, 2017, more than 14 days after the entry of the June
30, 2017, amended judgment, the father filed another motion
in which he sought relief from that judgment pursuant to Rule
59(e). On August 24, 2017, the father filed a notice of
appeal to this court. The juvenile-court judge subsequently
certified that the record was adequate for an appeal to this
court, pursuant to Rule 28(A), Ala. R. App. P.
Initially,
we note that, although the juvenile-court judge certified
that the record met the requirements for review by this
court, the record on appeal does not contain transcripts of
the hearings that were held in this action; indeed, the
juvenile court's court reporter certified that
"there is no official transcript available of the
proceedings in th[is action]." Therefore, if the
father's notice of appeal had been timely filed, the
appeal would be transferred to the Elmore Circuit Court for a
trial de novo. See Rules 28(B) and 28(D), Ala. R.
Juv. P.;[6] and S.J. v. K.J., 206 So.3d 641,
644 (Ala. Civ. App. 2016) ("Although the juvenile court
certified the record as adequate for appellate review, that
certification is not binding on this court." (citing
R.G. v. C.M., 980 So.2d 417, 418 (Ala. Civ. App.
2007))). However, for the reason discussed below, we conclude
that the father's notice of appeal was not timely filed
and that, therefore, the father's appeal is due to be
dismissed rather than transferred to the Elmore Circuit
Court.
The
mother has filed a motion to dismiss the father's appeal,
asserting that the father's notice of appeal was untimely
filed because, the mother says, the father's July 27,
2017, motion was a repetitive Rule 59(e) motion that did not
toll the running of the 14-day period for the father to file
his notice of appeal. Therefore, according to the
mother's reasoning, the father's notice of appeal was
untimely because it was not filed within 14 days after July
14, 2017, the date the juvenile-court judge entered the order
purporting to deny the father's July 12, 2017, Rule 59(e)
motion.
Although
we agree that the father's notice of appeal was untimely,
our rationale for reaching that conclusion differs from the
rationale asserted by the mother. After the referee's
findings and recommendations were filed on April 20, 2017,
the parties had 14 days to request a rehearing before the
juvenile-court judge. See §§ 12-15-106(e)
and 12-15-106(f). The entry of the juvenile-court judge's
order ratifying the referee's findings and
recommendations did not foreclose either party from
requesting and receiving a rehearing before the
juvenile-court judge. See Ex parte Quarles, 197
So.3d 499, 502-03 (Ala. Civ. App. 2015) ("A
referee's findings and recommendations can become a
judgment of the juvenile court when they are ratified by a
juvenile-court judge, but, even in that instance, if a party
has promptly and sufficiently applied for a rehearing, §
12-15-106(e)[, Ala. Code 1975, ] grants that party an
unqualified statutory right to a rehearing which Rule 1(B)[,
Ala. R. Juv. P., ] cannot effectively negate."
(citations omitted)). However, neither party filed a request
for a rehearing before the juvenile- court judge within 14
days after the referee's findings and recommendations
were filed on April 20, 2017. Instead, the mother elected to
file a Rule 59(e) motion on April 24, 2017.
As
noted above, the referee, rather than the juvenile-court
judge, entered the order purporting to extend the 14-day
period for a ruling on the mother's postjudgment motion
and purported to rule on that motion on May 15, 2017. Section
12-15-106, Ala. Code 1975, does not specifically provide that
a referee has the power to extend the period for a ruling on
a postjudgment motion or to rule on a postjudgment motion. If
the powers conferred on a referee by that Code section do not
include the power to extend the period for a ruling on a
postjudgment motion, the mother's postjudgment motion was
denied by operation of law upon the elapsing of 14 days after
it was filed. See Rule 1(B), Ala. R. Juv. P.
(providing that a postjudgment motion in a juvenile-court
action shall not remain pending for more than 14 days unless
the 14-day period is validly extended pursuant to that rule).
If the powers conferred on a referee by § 12-15-106
include the power to extend the period for a ruling on a
postjudgment motion but do not include the power to rule on a
postjudgment motion, the mother's postjudgment motion was
denied by operation of law upon the elapsing of 28 days after
it was filed. See Rule 1(B)(1), Ala. R. Juv. P.
(providing that the 14-day period for ruling on a
postjudgment motion may be extended by written order of the
juvenile court "for not more than 14 additional
days"). Thus, at the latest, the mother's
postjudgment motion was denied by operation of law on May 22,
2017. Because this appeal would be due to be dismissed
regardless of whether the mother's postjudgment motion
was denied by operation of law on May 8, 2017, the 14th day
after it was filed; by the referee's order on May 15,
2017; or by operation of law on May 22, 2017, the 28th day
after it was filed, we need not decide whether the referee
had the power to extend the 14-day period for a ruling on the
mother's postjudgment motion or the power to rule on the
mother's postjudgment motion.
If the
mother's Rule 59(e) motion was denied on May 22, 2017,
the latest date it could have been denied, the parties had 14
days from May 22, 2017, to file notices of appeal from the
April 20, 2017, judgment that had resulted from the entry of
the juvenile-court judge's April 20, 2017, order
ratifying the findings and recommendations of the referee.
However, neither party filed a notice of appeal within that
14-day period. Instead, the mother elected to file her
pleading titled "Mother's Objection to Referee's
Report" on May 23, 2017. That pleading, even if it were
deemed to be a request for a rehearing before the
juvenile-court judge despite its failure to expressly request
such a rehearing, was untimely because it was not filed
within 14 days after the filing of the referee's findings
and recommendations on April 20, 2017. See
§§ 12-15-106(e) and 12-15-106(f). Therefore, the
juvenile court lost jurisdiction over this action, at the
latest, on May 22, 2017, and the mother's pleading titled
"Mother's Objection to Referee's Report"
did not invoke the juvenile court's jurisdiction anew.
Thus, the June 30, 2017, amended judgment and all other
orders entered by the juvenile-court judge subsequent to May
22, 2017, are void.
Accordingly,
the only valid judgment entered by the juvenile court was the
April 20, 2017, judgment that resulted from the
juvenile-court judge's ratification of the referee's
findings and recommendations on that date. That judgment
remains in effect because, as discussed above, the juvenile
court lost jurisdiction to amend it, at the latest, on May
22, 2017. Thus, the father's notice of appeal is untimely
because it was not filed within 14 days after the denial of
the mother's Rule 59(e) motion, which occurred, at the
latest, on May 22, 2017. Accordingly, because his notice of
appeal was untimely filed, we dismiss the father's
appeal, albeit with instructions to the juvenile court to set
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