K.G.
v.
J.J.
Appeal
from Russell Circuit Court (DR-18-900172)
THOMPSON, PRESIDING JUDGE.
On
August 21, 2018, J.J. ("the father") filed in the
Russell Circuit Court ("the trial court") a
petition seeking an award of custody of the child born of his
relationship with K.G. ("the mother"). In that
petition, the father alleged that the Russell Juvenile Court
("the juvenile court") had entered a June 29, 2009,
judgment adjudicating his paternity and establishing his
monthly child-support obligation. In his August 21, 2018,
petition, the father claimed that he was seeking an
"initial custody determination" and an award of
sole physical custody of the child.[1]
The
mother filed in the trial court an answer opposing the
father's August 21, 2018, petition. The mother also
counterclaimed seeking, among other things, an award of sole
physical custody of the child, a determination of the
father's child-support arrearage, and an attorney fee.
The
trial court conducted an ore tenus hearing on the
parties' claims. On March 1, 2019, the trial court
entered a judgment in which, among other things, it purported
to award sole physical custody of the child to the father, to
award the mother a schedule of visitation, to determine the
father's child-support arrearage, and to order the mother
to pay child support to the father.[2] On March 21, 2019, the
mother filed two postjudgment motions, and the trial court
entered an April 2, 2019, order denying those motions. The
mother filed a notice of appeal to this court on April 11,
2019.
In
their briefs submitted to this court, neither party has
addressed the issue of the trial court's jurisdiction
over the father's claims. However, jurisdictional issues
are of such importance that an appellate court may take
notice of them ex mero motu. Nunn v. Baker,
518 So.2d 711, 712 (Ala. 1987); Heaston v. Nabors,
889 So.2d 588, 590 (Ala. Civ. App. 2004). This court asked
the parties to submit letter briefs regarding the issue of
whether the trial court properly exercised jurisdiction over
the father's action.
The
parties' pleadings indicate that the juvenile court had
entered a judgment in which it determined the father's
paternity and that it had subsequently entered two judgments
concerning the father's child-support obligation. Thus,
the record demonstrates that the juvenile court had exercised
jurisdiction over the action between the parties that
established the father's paternity of the child under the
Alabama Uniform Parentage Act ("AUPA"), §
26-17-101 et seq., Ala. Code 1975. § 12-15-115(a)(6),
Ala. Code 1975 (A juvenile court has original jurisdiction
over "[p]roceedings to establish parentage of a child
pursuant to the [AUPA]."). The record does not contain
any documentation from the juvenile-court action between the
parties. However, in its March 1, 2019, judgment, the trial
court set forth relevant information concerning the juvenile
court's earlier judgments as follows:
"The [father] was adjudicated father of the minor child
on June 30, 2009, through a child-support judgment in the
[Juvenile] Court of Russell County, Alabama, in
57-CS-209-39.00. Said judgment was modified on two occasions,
and on January 11, 2016, (CS-09-39.02), the [father] was
ordered to pay $515.84 per month as 'current' child
support, along with $25 per month towards a child-support
arrearage totaling $1, 939.74, plus interest in the amount of
$156.96."[3]
The
parties acknowledge that those earlier judgments of the
juvenile court did not contain an express award of custody to
the mother. However, in the action in the trial court, the
parties and the trial court recognized that those judgments
of the juvenile court ordering the father to pay child
support constituted an implicit award of custody to
the mother. See, e.g., M.K. v.
A.M., 176 So.3d 221, 222 (Ala. Civ. App. 2015) ("In
determining the father's child-support obligation, the
juvenile court either explicitly or implicitly awarded
custody of the child to the mother."); L.E.W. v.
M.J.L., 200 So.3d 1171, 1172 (Ala. Civ. App. 2015)
("'[A]n award of support to one parent constitutes
an implicit award of custody to that parent.'"
(quoting Ex parte Washington, 176 So.3d 852, 853
(Ala. Civ. App. 2015)); and T.B. v. C.D.L., 910
So.2d 794, 796 (Ala. Civ. App. 2005) ("Based upon the
award of child support to the mother, we conclude that the
mother was also awarded custody of the child at the time the
original paternity and child-support judgment was entered and
that the award of custody to the mother was reaffirmed by the
subsequent modification judgments."). Accordingly, the
parties and the trial court agreed that the
custody-modification standard set forth in Ex parte
McLendon, 455 So.2d 863 (Ala. 1984), applied to the
father's action filed in the trial court that sought to
modify the juvenile court's award of custody to the
mother.[4]
In
reaching those conclusions, however, the parties and the
trial court did not recognize that the juvenile court
retained jurisdiction concerning the modification or
enforcement of its earlier judgments under §
12-15-117(a), Ala. Code 1975, which provides:
"(a) Once a child has been adjudicated dependent,
delinquent, or in need of supervision, jurisdiction of the
juvenile court shall terminate when the child becomes 21
years of age unless, prior thereto, the judge of the juvenile
court terminates its jurisdiction by explicitly stating in a
written order that it is terminating jurisdiction over the
case involving the child. Nothing in this section is
intended to affect the initial and continuing jurisdiction of
juvenile courts over cases other than delinquency,
dependency, or in need of supervision cases as provided in
Sections 12-15-114, 12-15-115, 12-15-116, [Ala. Code 1975, ]
or any other statute by which jurisdiction was initially
lawfully invoked."
(Emphasis added.) See also § 12-15-117.1, Ala.
Code 1975 (reiterating a juvenile court's continued
jurisdiction to modify and enforce its judgments in any
action that had been within its original jurisdiction).
In
M.K. v. A.M., supra, a juvenile court established
A.M.'s paternity of a child born of his relationship with
the child's mother, and it ordered A.M. to pay child
support. After the child's mother died, M.K., the
child's maternal grandmother, filed in the circuit court
in that case a petition to modify custody, seeking custody of
the child. The circuit court purported to award custody of
the child to A.M., and the maternal grandmother appealed. 176
So.3d at 222. This court held that because the juvenile court
maintained jurisdiction over the child, the juvenile court,
not the circuit court, had jurisdiction over the maternal
grandmother's custody action; therefore, this court
concluded that the judgment of the circuit court in that case
was void for want of jurisdiction. M.K. v. A.M., 176
So.3d at 222.
The
father argues in his letter brief submitted to this court
that the same judge who presided over this action also serves
as a juvenile-court judge. That fact, however, does not
operate to confer jurisdiction in the trial court over the
father's action seeking to modify a judgment of the
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