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Hicks v. Davis

Alabama Court of Civil Appeals

June 29, 2018

Nicole Hicks
v.
Arielious Davis

          Appeal from Barbour Circuit Court (DR-16-58)

          DONALDSON, Judge.

         Nicole Hicks ("the mother") appeals from a judgment of the Barbour Circuit Court ("the circuit court") granting her and Arielious Davis ("the father") joint custody of K.D. ("the child"). The materials before us establish that the circuit court lacked subject-matter jurisdiction to enter the judgment. Therefore, we dismiss the appeal with instructions.

         The record shows that, in 2013, the State of Alabama, on behalf of the mother, petitioned the Barbour Juvenile Court ("the juvenile court"), seeking to collect child support from the father; that action was docketed as case no. CS-13-14 ("the child-support action"). On May 6, 2013, after a hearing at which both the mother and the father were present, the juvenile court entered a judgment ordering the father to pay $246 per month in child support and retroactive child support of $430 per month. On March 16, 2017, the State of Alabama filed a motion in the child-support action seeking to redirect payments of child support to the mother after having received a handwritten request from the mother stating that she would like to "take [the father] off child support." The juvenile court granted the motion that same day. There is no indication that the May 6, 2013, judgment of the juvenile court was vacated.

         In 2016, the father filed a petition for protection from abuse against the mother in the circuit court, which was docketed as case no. DR-16-45 ("the protection-from-abuse action"). The mother apparently filed a counter petition for protection from abuse. On August 29, 2016, the circuit court entered an order granting both the mother's and the father's petitions.[1] At some point thereafter, the father filed a motion in the protection-from-abuse action asserting that the mother had violated the protection-from-abuse order. On October 13, 2016, the circuit court granted the father temporary custody of the child. On October 20, 2016, after a hearing, the circuit court entered an order in the protection-from-abuse action noting that it was withholding ruling on the father's motion until the disposition of the mother's pending criminal charges with the City of Eufaula. The circuit court further ordered that custody of the child would remain with the father pending further orders.

         On October 17, 2016, the father filed a petition in the circuit court seeking custody of the child, which was docketed as case no. DR-16-58 ("the custody action"). In his petition, the father asserted, among other things, that the mother had placed the child in danger. The mother filed an answer denying the assertions in the father's petition. On March 30, 2017, after a hearing, the circuit court entered a pendente lite order in the custody action that, among other things, granted the mother unsupervised visitation with the child every other weekend. On July 18, 2017, the circuit court held a trial on the father's petition for custody.

         On July 18, 2017, the circuit court entered a judgment in the custody action that, among other things, granted the mother and the father joint custody of the child with each party alternating weekly physical custody of the child. The circuit court also ordered that "[e]ach party shall continue to abide by the Protection from Abuse Orders" and that "[c]hild support shall remain in the jurisdiction of the [Juvenile] Court as previously determined as to monthly support and arrearages."

         On July 24, 2017, the mother filed a motion seeking to alter, amend, or vacate the judgment. In her motion, the mother asserted that the circuit court should have applied the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984) ("the McLendon standard") in the custody determination because the father had previously been ordered to pay child support, which, she asserted, was an implicit order awarding physical custody to the mother. To her motion, the mother attached the May 6, 2013, judgment entered in the child-support action.

         On July 31, 2017, the circuit court entered an order denying the mother's postjudgment motion and finding, in part:

"A final hearing was held in this matter on July 18, 2017. Testimony was taken from the parties and other interested witnesses. The mother was represented and the father was pro se. A ruling was issued in writing following said hearing.
"This Court marked and admitted as exhibits, the prior [Juvenile] Court child support orders relevant to the proceeding at hand. No objections were made. These orders were emailed and/or faxed by the [Juvenile] Court Clerk in charge of child support files, which have not been scanned into the e-file system because of personnel shortages and lack of funding.
"These same files and orders are available as public records to any party or attorney who wishes to review them prior to a hearing.
"Included in these orders was a pro se dismissal by the mother, Nic[]ole Hicks, of her child support case against the father, Arielious Davis. This was apparently not known by the attorney for [the mother]. As the officer of the Court, he would have been obligated to acknowledge this fact instead of arguing that the [Juvenile] Court orders created a higher burden for custody determination.
"However, even if [the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), ] applies, the ...

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