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C.B.W.N. v. K.P.R.

Alabama Court of Civil Appeals

March 23, 2018

C.B.W.N.
v.
K.P.R.

          Appeal from Shelby Probate Court (PR-16-760)

          DONALDSON, JUDGE.

         C.B.W.N. ("the stepfather") appeals from an order of the Shelby Probate Court ("the probate court") that, among other things, granted the contest of K.P.R. ("the father") to the proposed adoption of C.A.R. ("the child") by the stepfather, denied the stepfather's petition to adopt the child, and dismissed the adoption proceeding. Based on the current interpretation of § 26-10A-26, Ala. Code 1975, the appeal was required to be filed within 14 days of the entry of the order. Because the appeal was filed more than 14 days after the entry of the order, this court is without jurisdiction and we dismiss the appeal. Rule 2(a)(1), Ala. R. App. P.

         Facts and Procedural History

         The facts pertinent to the disposition of this appeal are as follows. On October 24, 2016, the stepfather filed a petition in the probate court seeking to adopt the child. The father filed an answer to the stepfather's petition in which he contested the adoption. On May 8, 2017, after a hearing at which ore tenus testimony was taken, the probate court entered a detailed final order in which it, among other things, found that the father had not impliedly consented to the adoption, granted the father's contest to the adoption, denied the stepfather's adoption petition, and dismissed the adoption proceeding.

         On May 18, 2017, the stepfather filed a motion seeking to alter, amend, or vacate the May 8, 2017, order. On June 9, 2017, the probate court entered an order setting the stepfather's postjudgment motion for a hearing on August 2, 2017. On August 10, 2017, the probate court entered an order denying the stepfather's postjudgment motion. The stepfather filed his notice of appeal to this court on August 21, 2017. This court has appellate jurisdiction of appeals from adoption proceedings pursuant to § 12-3-1, Ala. Code 1975.

         Discussion

         Before reaching the merits of the stepfather's arguments, we must determine whether the stepfather's notice of appeal was timely filed because "an untimely filed notice of appeal results in a lack of appellate jurisdiction." Parker v. Parker, 946 So.2d 480, 485 (Ala. Civ. App. 2006). See also Rule 2(a)(1), Ala. R. App. P. ("An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.").

         In his brief, the father asserts that the stepfather's notice of appeal was not timely and that, therefore, this court should dismiss the stepfather's appeal. In response, the stepfather filed a motion asking this court to deem his appeal to have been timely filed, to which he attached a memorandum in support.

         The stepfather argues that the order from which he appealed is not a "final decree of adoption" that must be appealed within 14 days pursuant to § 26-10A-26(a), Ala. Code 1975. The stepfather cites J.B.M. v. J.C.M., 142 So.3d 676 (Ala. Civ. App. 2013), in support of his position. In J.B.M., this court held that "the period for filing a notice of appeal from the denial of a Rule 60(b)[, Ala. R. Civ. P., ] motion pertaining to an adoption proceeding before the probate court is 42 days pursuant to Rule 4(a)(1), Ala. R. App. P." 142 So.3d at 682. A motion filed pursuant to Rule 60(b), Ala. R. Civ. P., however, "does not bring up for review the merits of the underlying judgment and is instead a collateral attack on the judgment." Ex parte R.S.C., 853 So.2d 228, 233 (Ala. Civ. App. 2002). Further, a motion filed pursuant to Rule 60(b) "does not affect the finality of a judgment or suspend its operation, " and the motion "is not deemed denied by operation of law ...." Id. at 233-34. Accordingly, J.B.M. is inapplicable to the present situation.

         Our supreme court, in considering the interplay between Rule 21(a)(3), Ala. R. App. P., and § 26-10A-26(a), has held that it is "clear that the presumptively reasonable time for filing a mandamus petition challenging an order in an adoption proceeding is 14 days." Ex parte K.R., 210 So.3d 1106, 1111 (Ala. 2016)(emphasis added). The supreme court's application of the 14-day appeal period in § 26-10A-26(a) to an interlocutory order--which is not a "final decree of adoption"--demonstrates that final orders entered in adoption proceedings, whether granting or denying adoption petitions, must be appealed within 14 days.

         The stepfather also argues that the Code of Alabama and the Alabama Rules of Civil Procedure do not contemplate a 14-day period pertaining to the filing of, and the ruling on, postjudgment motions. This court has held that the 14-day period for appeals from adoption judgments is applicable to postjudgment practice in adoption proceedings. See, e.g., Ex parte W.L.K., 175 So.3d 652 n. 1 (Ala. Civ. App. 2015); see also R.W.S. v. C.B.D., [Ms. 2160344, Aug. 11, 2017] ___So. 3d, (Ala. Civ. App. 2017). The stepfather asks this court to "correct" what he asserts is "bad dicta" in a footnote in Ex parte W.L.K. "as being contrary to the plain language of the applicable laws and rules set out in the Code of Alabama and the Alabama Rules of Civil Procedure."

         In Ex parte W.L.K., however, this court relied on Ex parte A.M.P., 997 So.2d 1008');">997 So.2d 1008 (Ala. 2008), which included several appeals and a petition for a writ of mandamus that had been consolidated and in which our supreme court explained that the appellants in that case had filed a postjudgment motion within 14 days of the entry of the adoption judgment, that that motion had been denied by operation of law 14 days after its filing, and that the appellants' notice of appeal, which had been filed within 14 days of the denial by operation of law of the postjudgment motion, was timely. Id. at 1013. It is well settled that "this court is bound by the decisions of our supreme court. Ala. Code 1975, § 12-3-16. We are not at liberty to overrule or modify those decisions. Thompson v. Wasdin, 655 So.2d 1058 (Ala. Civ. App. 1995)." TenEyck v. TenEyck, 885 So.2d 146, 158 (Ala. Civ. App. 2003).

         The probate court entered its final order on May 8, 2017. Although the stepfather timely filed his postjudgment motion within 14 days of the entry of the order (on May 18, 2017), that motion was denied by operation of law 14 days later--on June 1, 2017. Therefore, the stepfather's notice of appeal was due to be filed no later than 14 days after the date his postjudgment motion was denied by operation of law--June 15, 2017. Because the stepfather did not file his notice of appeal until August 21, 2017, it was not timely filed and, as a result, this court lacks jurisdiction to consider the stepfather's appeal. See Ex parte A.M.P., 997 So.2d at 1013; and K.P. v. Madison Cty. Dep't of Human Res., [Ms. 2160414, July 21, 2017] ___So. 3d ___, ___ (Ala. Civ. App. 2017)("The Rules ...


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