A.W. and W.W.
from Montgomery Juvenile Court (JU-14-146.09 and JU-15-61.02)
THOMPSON, PRESIDING JUDGE
September 16, 2016, A.W. ("the great-aunt") and
W.W. ("the great-uncle") filed in the Montgomery
Juvenile Court ("the juvenile court") petitions
seeking to have the two minor children of J.W. ("the
father") and V.L. ("the mother") found
dependent and seeking an award of custody of the children.
March 23, 2018, the juvenile court entered judgments finding
that the children were dependent, awarding joint legal
custody of the children to the mother, the great-aunt, and
the great-uncle, and awarding physical custody of the
children to the great-aunt and the great-uncle. On April 5,
2018, the mother filed a postjudgment motion addressing both
judgments, and, on the same day, she filed a single notice of
appeal addressing both judgments. The mother's notice of
appeal was held in abeyance until the denial by operation of
law of the postjudgment motion. See Rule 59.1, Ala.
R. Civ. P.; A.J. v. E.W., 167 So.3d 362, 366 (Ala.
Civ. App. 2014).
appeal, the mother does not challenge the sufficiency of the
evidence supporting the dependency findings or the custody
awards. Therefore, any arguments as to those issues have been
waived. Ex parte Riley, 464 So.2d 92, 94 (Ala.
the mother argues on appeal that the juvenile court never
acquired subject-matter jurisdiction over the dependency
actions because, she says, the great-aunt and the great-uncle
did not pay a filing fee in either dependency action.
"[Section] 12-19-70 requires the payment of filing fees
or a court-approved verified statement of financial hardship
at the time of filing the complaint." De-Gas, Inc.
v. Midland Res., 470 So.2d 1218, 1222 (Ala. 1985)
(emphasis omitted). The record does not indicate that a
filing fee was paid in either action. However, at the time
the dependency actions were filed, the great-aunt and the
great-uncle filed in each action an affidavit of substantial
hardship and sought the waiver of the requirement that a
filing fee be paid. The record contains no indication
regarding whether the juvenile court ruled on those requests
for indigency status.
the duty of the appellant to ensure that the record on appeal
contains sufficient evidence or materials to substantiate a
claim that there has been error below or that a court lacks
jurisdiction. S.K. v. N.B., 160 So.3d 27, 30 (Ala.
Civ. App. 2014); see also Woodward v. State ex rel.
Woodward, 664 So.2d 211, 213 (Ala. Civ. App. 1994)
(affirming the denial of a Rule 60(b)(4), Ala. R. Civ. P.,
motion when the movant failed to present in support of that
motion any documentation demonstrating a lack of
jurisdiction). This court is unable to discern from the
record that no filing fees were paid, as the mother asserts,
or that the juvenile court ruled on the requests for
indigency status. Accordingly, we cannot say that the mother
has demonstrated error or that the juvenile court lacked
mother also argues that the juvenile court's judgments
are void because of the lack of indispensable parties. The
mother argues on appeal that the children's father and
A.D., a maternal aunt of the children, were indispensable
parties. We note that, although the record contains
allegations regarding the father's circumstances and
assertions that A.D. and the mother had been awarded joint
legal custody of the children at some point in the past,
there are no orders and there is no evidence in the record to
support a conclusion that the children have a legal father or
that there exists a previous custody award. The juvenile
court did not receive ore tenus evidence at the hearing in
these actions. Rather an attorney for the Montgomery County
Department of Human Resources, a guardian ad litem, and the
mother appeared before the juvenile court, and their
arguments and unsworn representations to the court were
Moreover, as our supreme court has recently explained, the
failure to include an indispensable party is not a
jurisdictional defect. Miller v. City of Birmingham,
235 So.3d 220, 230 (Ala. 2017); see also Ex parte
A.J., [Ms. 2170217, Jan. 12, 2018] So.3d (Ala. Civ. App.
2018) (same). Thus, the mother has not demonstrated that the
juvenile court's judgments were void for want of
jurisdiction based on a purported failure to join
mother last argues that the juvenile court erred in awarding
her visitation at the discretion of the great-aunt and the
great-uncle. Generally, an award of visitation to a
noncustodial parent may not be entirely at the discretion of
a child's custodian. Pratt v. Pratt, 56 So.3d
638, 643 (Ala. Civ. App. 2010); A.M.B. v. R.B.B., 4
So.3d 468, 471 (Ala. Civ. App. 2007). In these cases, the
juvenile court failed to take any evidence, and it placed the
mother's visitation with the children entirely at the
discretion of the great-aunt and the great-uncle. The
juvenile court erred in failing to set forth a minimum
visitation schedule for the mother. Pratt v. Pratt,
supra; A.M.B. v. R.B.B., supra. Accordingly, we
reverse the judgments as to that issue and remand the causes
for the juvenile court to conduct any proceedings that are
necessary to address that issue and to enter judgments in
compliance with this court's opinion.
IN PART; REVERSED IN PART; AND ...