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Barnes v. Barnes

Alabama Court of Civil Appeals

August 16, 2019

Brandee Marie Barnes
v.
Christopher Scott Barnes

          Appeal from Shelby Circuit Court (DR-15-72.02)

          THOMPSON, PRESIDING JUDGE.

         The 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 of custody).

         On July 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.

         On 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.[1] 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.").

         On 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.

         On 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.

         On 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.

         Also on 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.

          The 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 the mother.

         On 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. Code 1975]."

         The 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 motion'").

         On appeal, the mother challenges the trial court's August 10, 2018, judgment denying her request to ...


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