Ex parte A.J.
A. J. In re: R.E.
Juvenile Court, CS-17-126
PETITION FOR WRIT OF MANDAMUS
("the mother") gave birth to H.G.B. ("the
child") on February 22, 2017. The following day, E.B.
("the acknowledged father") executed an
acknowledgment of paternity and was named as the child's
father on the birth certificate. The mother and the
acknowledged father married on May 1, 2017.
on March 28, 2017, R.E. ("the alleged father")
filed a complaint seeking to establish paternity and child
support in the Jefferson Juvenile Court. The mother was
served with the complaint on May 11, 2017. On May 23, 2017,
the mother, who was acting pro se, filed a motion to dismiss
the action; in the motion she contended that the alleged
father lacked standing to pursue an adjudication as to his
paternity of the child because the acknowledged father was a
"presumed father" under Ala. Code 1975, §
26-17-204(a)(4). The motion was not immediately ruled upon.
mandamus petition, the mother indicates that Judge Carnella
Green Norman ordered genetic testing on June 1, 2017, after a
hearing on that same date. Judge Norman set the matter for
another hearing to be held in August 2017; the mother
appeared for that hearing, which Judge Norman reset for
January 2018 because the alleged father did not appear.
However, on August 24, 2017, Judge Raymond P. Chambliss
entered an order setting the case for a hearing before Judge
George Sims, to be held on August 29, 2017. The mother did
not receive notice of the August 24, 2017, order or of the
August 29, 2017, hearing.
August 29, 2017, Judge Sims entered an order awarding
visitation to the alleged father and continuing the case to
October 17, 2017. Judge Sims's order indicated that the
mother was not present for the hearing. The State Judicial
Information System case-action-summary sheet does not reflect
that notice of the October 17, 2017, hearing was sent to the
October 17, 2017, presumably after a hearing, Judge Sims
entered an order determining that the alleged father is the
father of the child and continuing the case for another
hearing to be held on November 14, 2017; the order does not
address child support and, therefore, is not a final
judgment. Around that same time in October 2017, the mother
learned of the entry of the August 29, 2017, order and the
October 17, 2017, order. Through an attorney, the mother
filed a motion seeking reconsideration of the October 17,
2017, order, the August 29, 2017, order, and the June 1,
2017, order ("the motion to
reconsider"). The juvenile court began a hearing on the
motion to reconsider on October 31, 2017, but that hearing
was not completed until November 14, 2017.
November 3, 2017, the acknowledged father filed a motion to
intervene in the paternity action. In his motion, the
acknowledged father contended that he is the presumed father
of the child and that, therefore, he is an indispensable
party to the paternity action. After the November 14, 2017,
hearing, at which the juvenile court indicated it was
considering the motion to intervene, the motion to
reconsider, and the mother's still pending motion to
dismiss, the juvenile court entered an order granting the
acknowledged father's motion to intervene and denying the
motion to reconsider; the order does not specifically
reference the mother's motion to dismiss or indicate what
other proceedings might be contemplated. Furthermore, the
November 14, 2017, order does not resolve the issue of child
support and is, therefore, like those before it, not a final
judgment resolving the paternity action. The mother filed
this petition for the writ of mandamus on November 28, 2017.
petition, the mother argues that this court should direct the
juvenile court to set aside the June 1, 2017, August 29,
2017, and October 17, 2017, orders as void for failure to
join an indispensable party. See A.S. v. M.W., 100
So.3d 1112, 1114 (Ala. Civ. App. 2012) (indicating that the
failure to join all presumed fathers in an action seeking to
establish paternity of a child renders the paternity judgment
void). Because the mother specifically seeks relief from the
June 1, 2017, August 29, 2017, and October 17, 2017, orders
but not the November 14, 2017, order, we must consider
whether her petition is timely. Generally, a petition for the
writ of mandamus in a juvenile matter must be filed within 14
days of the entry of the order under review. See
Rule 21(a)(3), Ala. R. App. P.; Ex parte C.J.A., 12
So.3d 1214, 1215-16 (Ala. Civ. App. 2009) (explaining that
the presumptively reasonable time for filing a petition for
the writ of mandamus in a juvenile case is 14 days). The
motion to reconsider did not extend the time for filing the
mother's petition for the writ of mandamus. See Ex
parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.
2003) (explaining that motions seeking reconsideration of
interlocutory orders do not toll the time for filing a
petition for the writ of mandamus). The mother's petition
was filed months after the entry of the June 1, 2017, and
August 29, 2017, orders and six weeks after the entry of the
October 17, 2017, order. Thus, the mother's November 28,
2017, petition, having been filed more than 14 days after the
entry of the June 1, 2017, August 29, 2017, and October 17,
2017, orders, is untimely regarding all three
orders. Accordingly, the mother's petition is
dismissed as having been untimely filed.
Thompson, P.J., and Pittman, Moore, and Donaldson, JJ.,
We note that the motion filed by the
mother mistakenly relied on Rule 59, Ala. R. Civ. P., and
Rule 60(b), Ala. R. Civ. P. However, the mother's motion
is neither a Rule 59 motion, see Ex parte Troutman
Sanders, LLP, 866 So.2d 547, 550 (Ala. 2003) (quoting
Malone v. Gainey, 726 So.2d 725, 725 n.2 (Ala. Civ.
App. 1999))("A 'Rule 59 motion may be made only in
reference to a final judgment or order.'"), nor a
Rule 60(b) motion, see Hallman v. Marion Corp., 411
So.2d 130, 132 (Ala. 1982) ("Interlocutory orders ...
are ... not brought within the restrictive provisions of Rule
60(b), Alabama Rules of Civil Procedure, which provides for
relief from final ...