from Shelby Circuit Court (DR-15-72.02)
THOMPSON, PRESIDING JUDGE.
Shelby Circuit Court ("the trial court") entered a
judgment on October 22, 2015, divorcing Christopher Scott
Barnes ("the father") and Brandee Marie Barnes
("the mother") and incorporating an agreement
reached by the parties. The parties' divorce action was
assigned case number DR-15-72.00. Among other things, the
parties were awarded joint legal custody of their children
and the mother was awarded sole physical custody.
See 30-3-151, Ala. Code 1975 (defining various forms
13, 2017, the trial court entered a judgment that modified
the divorce judgment in ways not pertinent to the issue
presented in this appeal. That modification action was
assigned case number DR-15-72.01.
December 5, 2017, the father filed in the trial court a
petition in the divorce action (case number DR-15-72.00)
pursuant to the Alabama Parent-Child Relationship Protection
Act ("the Act"), § 30-3-160 et seq., Ala. Code
1975. Attached to the father's petition was a November 6,
2017, letter from the mother notifying him, pursuant to the
requirements of the Act, of her intention to relocate to
Mississippi with the children. The father's December 5,
2017, petition was an objection, filed pursuant to the Act,
to the mother's proposed relocation with the parties'
children. See § 30-3-169, Ala. Code 1975
("The person entitled to determine the principal
residence of a child may change the principal residence of a
child after providing notice as provided herein unless a
person entitled to notice files a proceeding seeking a
temporary or permanent order to prevent the change of
principal residence of a child within 30 days after receipt
of such notice.").
January 8, 2018, the trial court, apparently ex mero
motu, dismissed the father's December 5, 2017,
petition in the divorce action without prejudice and ordered
the father to refile the action. In its January 8, 2018,
order, the trial court explained that the December 5, 2017,
petition had been erroneously filed in the divorce action and
that the father should refile his petition and that it should
be designated as case number DR-15-72.02.
February 8, 2018, the father refiled his petition objecting
to the mother's proposed relocation with the children,
and the action initiated by that petition was designated as
case number DR-15-72.02. In that February 8, 2018, petition,
the father sought an order preventing the mother from
relocating with the children and requested a modification of
child custody. The mother filed an answer in which she denied
the claims in the father's February 8, 2018, petition and
demanded strict proof thereof. The trial court conducted an
ore tenus hearing on July 24, 2018.
August 8, 2018, the father filed a motion for an emergency
order to prevent the children from being removed from Alabama
pending the trial court's entry of a final judgment; in
that motion, the father alleged that the mother intended to
enroll the children in school in Mississippi. The trial court
entered an order on August 10, 2018, in which it granted the
father's emergency motion and ordered that the mother was
not to move the children out of this state.
August 10, 2018, the trial court entered a judgment
sustaining the father's objection to the proposed
relocation and ordering that the mother was not to remove the
children from this state. The trial court denied the
father's request for a modification of custody, noting
that the mother had indicated that she would not relocate if
a relocation would result in the modification of custody.
mother filed a postjudgment motion on August 16, 2018; in
that motion, the mother challenged the evidentiary support
for the trial court's August 10, 2018, judgment. The
trial court denied that postjudgment motion on August 16,
2018. Thereafter, the mother's attorney withdrew, and
another attorney filed a notice of appearance on behalf of
September 5, 2018, the mother, represented by new counsel,
filed a second postjudgment motion in which she argued that
the father's February 8, 2018, petition was not timely
filed under the Act, and, therefore, she argued that the
trial court did not have jurisdiction to consider that
petition. The father filed an opposition to that postjudgment
motion. On October 16, 2018, the trial court entered an order
denying the September 5, 2018, postjudgment motion. In
denying the mother's September 5, 2018, postjudgment
motion, the trial court stated, in part, that
"[t]he ultimate disposition of case no. DR-15-72.00[,
i.e., the January 8, 2018, order dismissing the father's
December 5, 2018, petition, ] does not change the fact that
the father did 'file a proceeding seeking a temporary or
permanent order to prevent the change of principal residence
of a child within 30 days after receipt of such notice,'
thereby complying with the mandate of § 30-3-169[, Ala.
mother filed a notice of appeal to this court on November 27,
2018. Initially, we note that the mother's appeal was
timely filed. Generally, successive postjudgment motions are
not allowed. Ex parte Keith, 771 So.2d 1018 (Ala.
1998). However, the mother's second, September 5, 2018,
motion was timely filed within 30 days of the entry of the
August 10, 2018, judgment, and that second postjudgment
motion raised a different argument than the one asserted in
the mother's original postjudgment motion. Wynn v.
Steger, 223 So.3d 938, 940 (Ala. Civ. App. 2016). For
that reason, the second postjudgment motion was valid and
operated to extend the time for the mother to file her
appeal. Wynn v. Steger, 223 So.3d at 940 (quoting
Roden v. Roden, 937 So.2d 83, 85 (Ala. Civ. App.
2006), for the proposition that "'Rule 59.1 has been
held to apply separately to each distinct timely filed
postjudgment motion so as to afford the trial court a full
90-day period to rule on each separate
appeal, the mother challenges the trial court's August
10, 2018, judgment denying her request to ...