author: MOORE, Judge.

text:
    R.P. v. STATE of Alabama ex rel. M.G.R.
    2050969.
    Court of Civil Appeals of Alabama.
    Feb. 9, 2007.

      Dinah P. Rhodes of Rhodes, Creech & Siniard, Huntsville, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Jennifer M. Bush, asst, at-tys. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

R.P., who has previously been adjudicated to be the father of C.R., appeals from the Madison Juvenile Court’s dismissal of his “Petition to Re-open Paternity Determination.” The issue presented for review is whether prior denial of a motion for genetic testing precludes a subsequent petition to reopen a paternity judgment pursuant to § 26-17A-1, Ala.Code 1975, under the doctrine of res judicata? We answer that question in the negative and reverse.

The pertinent facts disclosed by the record show that the juvenile court adjudicated R.P. to be the father of C.R. in May 1995. In early 2006, R.P. filed a motion with the juvenile court. The record does not contain a copy of that motion, but the parties agree that R.P. requested the court to order DNA testing to assist in disproving his paternity. As an exhibit to his motion, R.P. attached a report that purported to indicate that the results of genetic testing demonstrated that R.P. was not the father of C.R.; however, the report stated on its face that it could not be used as legal evidence of parentage or identity. The juvenile court denied the motion on March 27, 2006, stating that “[djefendant’s request for a court-ordered scientific testing for determination of non-paternity is denied.” On May 31, 2006, R.P. filed his “Petition to Re-open Paternity Determination”; attached as an exhibit to the petition was a report containing the results of additional genetic testing, which he alleged constituted “scientific evidence” of nonpa-ternity. The State, on behalf of M.G.R., C.R.’s mother, moved to dismiss the petition to reopen on the sole ground of res judicata, arguing that the denial of the earlier motion requesting DNA testing precluded the juvenile court from considering R.P.’s May 31, 2006, petition to reopen. The juvenile court apparently accepted this reasoning, dismissing the petition to reopen based on the ground asserted in the State’s motion.

Section 26-17A-1(a), Ala.Code 1975, known as “the McClain Act,” provides in pertinent part:

“Upon petition of the defendant in a paternity proceeding where the defendant has been declared the legal father, the case shall be reopened if there is scientific evidence presented by the defendant that he is not the father. The court shall admit into evidence any scientific test recognized by the court that has been conducted in accordance with established scientific principles or the court may order a blood test, or a Deox-yribose Nucleic Acid test of the mother, father, and child. Whenever the court orders a test and any of the persons to be tested refuse to submit to the test, the fact shall be disclosed at the trial, unless good cause is shown.”

In State v. E.W., 695 So.2d 619 (Ala.Civ.App.1995), aff'd, Ex parte State ex rel. A.T., 695 So.2d 624 (Ala.1997), the State, on behalf of the mother, filed a petition to modify child support. The father counterclaimed, disclaiming paternity, requesting blood testing and seeking to reopen the case pursuant to § 26-17A-1, Ala. Code 1975. The State argued that § 26-17A-1 was unconstitutionally vague “because there is some dispute as to whether a person previously adjudicated to be the father is required to present scientific evidence when he petitions the court to reopen his paternity case or whether the court may order tests to produce that scientific evidence....” In rejecting that argument, the Court noted that Rule 60(b), Ala. R. Civ. P., grants trial courts the authority to order blood testing and reconsider paternity even if § 26-17A-1, Ala. Code, does not. 695 So.2d at 621. The Court stated:

“Although the trial court apparently ordered blood tests in reliance on § 26-17A-1, its order was justified under Rule 60(b)[, Ala. R. Civ. P.]. Therefore, even if the trial court misconstrued the statute, it was harmless error, because the same relief was otherwise available. The label placed on the motion is not controlling, because [E.W.] sought relief that could be properly granted under [Rule] 60(b)....”

695 So.2d at 621.

On certiorari review, the Alabama Supreme Court described the procedure followed by the father as follows:

“On April 6, 1994, the mother petitioned to modify the child support order that had been initially entered in the case. E.W. defended the petition, arguing that he was not the father, and pursuant to § 26-17A-l[, Ala.Code 1975], he requested the reopening of the paternity case to allow him to present scientific evidence to prove that fact.
“The trial court ordered the blood tests requested by E.W., and the results indicated that E.W. was not the biological father of the child. He then moved the trial court to reopen the case and set aside the previous paternity order....”

695 So.2d at 626.

In R.L.T. v. S.V.P., 703 So.2d 1002 (Ala.Civ.App.1997), a father moved the court to order DNA testing “pursuant to Section 26-17A-1” to assist him in disproving his paternity. The trial court denied the motion on the ground of res judicata — i.e., on the basis that paternity had already been conclusively established. This court determined that the trial court had improperly applied the doctrine of res judicata but that it had properly denied the request for testing because the father had not presented sufficient evidence justifying the need for testing.

E.W. implies that when a man who has been adjudicated to be a child’s father does not provide scientific evidence of nonpaternity, any motion requesting genetic testing to obtain such evidence would be classified as a Rule 60(b), Ala. R. Civ. P., motion, regardless of the label of the motion, and that it would be error for the trial court to consider the motion pursuant to § 26-17A-1. AT. suggests that the father may properly request testing pursuant to § 26-17A-1, and that, if the test results indicate that he is not the father, he can then move to reopen the case and set aside the paternity order. R.L.T. also implies that a motion for DNA testing may be made pursuant to § 26-17A-1.

Whatever the tension between those opinions, it is clear that a motion requesting genetic testing is preliminary to a motion to set aside a paternity order pursuant to § 26-17A-1. The decision to grant or deny a motion for genetic testing is not an adjudication of the merits of the claim of nonpaternity. A trial court may deny a motion requesting genetic testing and still reopen a paternity judgment if the man who has been adjudicated to be the father presents scientific evidence of nonpaternity obtained from some other source. On the other hand, the trial court may grant the motion requesting genetic testing and conclude later, after the results of the genetic testing are made available to the court, that the paternity order should not be set aside. In either case, the ruling on the motion for genetic testing does not conclusively determine whether the prior paternity order should be set aside.

In this case, the juvenile court evidently determined that its March 27, 2006, order precluded R.P. from subsequently filing a petition pursuant to § 26-17A-1. R.P. appealed that decision, arguing that all of the elements of the doctrine of res judicata had not been established, specifically that there had not been a prior adjudication'of the merits of his May 31, 2006, petition to reopen. We agree.

When a trial court dismisses claims based on the doctrine of res judicata, the application of that doctrine is a question of law that must be reviewed de novo. EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So.2d 502, 507-08 (Ala.2005).

The four essential elements of the doctrine of res judicata are: 1) a prior judgment on the merits; 2) rendered by a court of competent jurisdiction; 3) with substantial identity of the parties; and 4) with the same cause of action presented in both actions. Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634 (Ala.1998). A judg ment is rendered on the merits “ ‘when it amounts to a decision as to the respective rights and liabilities of the parties, based on the ultimate fact or state of the parties disclosed by the pleadings or evidence, or both, and on which the right of recovery depends, irrespective of formal, technical, or dilatory objections or contentions.’ ” Mars Hill Baptist Church of Anniston, Alabama, Inc. v. Mars Hill Missionary Baptist Church, 761 So.2d 975, 978 (Ala.1999) (quoting 50 C.J.S. Judgment § 728 (1997)).

The record discloses that on March 27, 2006, the juvenile court merely denied R.P.’s motion for scientific testing without reaching the merits of his claim that such testing would disprove his paternity. The juvenile court never conducted the crucial inquiry as to whether the paternity judgment should be set aside on the basis of scientific evidence. The juvenile court could not have conducted this inquiry because, as the parties agree, the court did not have any scientific evidence before it to justify reopening the case for a consideration of the merits. The only evidence presented to the juvenile court at that time, a genetic-testing report attached to the original motion, stated on its face that it could not be used as legal evidence of parentage or identity. See Ex parte Jenkins, 723 So.2d 649, 652 (Ala.1998) (“Under § 26-17A-1(a), a previously adjudicated father can petition for a reopening of the final judgment of paternity, ... if he presents scientific evidence indicating that he is in fact not the biological father. Of course, the trial court must determine that the evidence is indeed scientifically valid and therefore reliable.”). The juvenile court’s decision to deny R.P.’s motion to order genetic testing that could have provided scientific evidence of his nonpaternity was not a decision on whether the case should be reopened, much less a conclusive determination as to whether the prior paternity order should be set aside.

In his May 31, 2006, petition to reopen, R.P. claims that a May 24, 2006, genetic test constitutes scientific evidence that there is 0% probability that he is the biological father of C.R. He seeks to reopen the prior paternity order pursuant to § 26-17A-1. He has further requested the juvenile court to order genetic testing of all the parties. We hold that R.P. has stated a valid claim for relief under § 26-17A-1 that is not barred by the doctrine of res judicata. We therefore reverse the decision of the juvenile court and remand the case to the juvenile court with instructions to conduct further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.


source: Caselaw Access Project

license: Public Domain

text:
    Debbie F. HUDSON v. Charlie E. HUDSON.
    2050492.
    Court of Civil Appeals of Alabama.
    Feb. 9, 2007.

      Joseph Keith Rodgers, Montgomery, for appellant.
    Spence A. Singleton, Montgomery, for appellee.
   MOORE, Judge.

Debbie F. Hudson (“the wife”) appeals from a judgment entered by the Montgomery Circuit Court divorcing her from Charlie E. Hudson (“the husband”) and declining to award periodic alimony to either party. The sole issue raised on appeal is whether the trial court exceeded its discretion in declining to award the wife periodic alimony. We dismiss the appeal for lack of appellate jurisdiction.

Following an ore tenus proceeding, the trial court entered a judgment of divorce on November 8, 2005, dissolving the marriage, dividing the marital property, and assigning debt. The divorce judgment provided that neither party would pay periodic alimony to the other party. On November 14, 2005, the wife filed a motion to alter, amend, or vacate the divorce judgment to the extent that it did not award her spousal support in the form of periodic alimony and did not grant her request for a name change. After hearing argument from counsel, the trial court entered an order on December 20, 2005, granting the wife’s request for a name change but declining to award her periodic alimony.

On December 29, 2005, the wife filed a second motion to alter, amend, or vacate, again asking for spousal support. On February 8, 2006, in response to this subsequent motion, the trial court awarded her a judgment in the amount of $1,200 against the husband for the income-tax debt he had brought into the marriage but declining any further modification regarding alimony. The wife filed her notice of appeal on March 21, 2006.

Even though the issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal. “Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.” McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004).

“The timely filing of a notice of appeal is a jurisdictional act. Gunnison-Mack v. State Pers. Bd., 923 So.2d 319, 320 (Ala.Civ.App.2005). Subject to exceptions not applicable here, a notice of appeal must be filed within 42 days after entry of the judgment or order from which the appeal is taken. Rule 4(a)(1), Ala. R.App. P. Rule 4(a)(3), Ala. R.App. P., states that the filing of a post-judgment motion under Rule 59, Ala. R. Civ. P., will suspend the time for filing an appeal until the date such motion is granted or denied or until the date the motion is denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Neither Rule 4(a)(3) nor any other rule, however, gives similar effect to a subsequent request seeking the trial court’s reconsideration of its denial of an earlier Rule 59 motion.”

Durr v. Durr, 961 So.2d 139 (Ala.Civ.App.2006) (footnote omitted).

This court has previously addressed whether a second postjudgment motion seeking the same relief that was sought in a previous postjudgment motion tolls the time for taking an appeal. See Ollis v. Ollis, 636 So.2d 458, 459 (Ala.Civ.App.1994); Gold Kist, Inc. v. Griffin, 659 So.2d 626 (Ala.Civ.App.1994). Both Ollis and Gold Kist are analogous to this case.

In Ollis, supra, the trial court entered a judgment granting the wife a divorce from bed and board, dividing property, and awarding periodic alimony and attorney fees to the wife. 636 So.2d at 458. On October 22, 1992, the husband filed a motion to set aside that judgment, asking for, among other things, an absolute divorce and a modification of the property division. Id. On December 29, 1992, the trial court entered an order that modified the property division but otherwise denied the husband’s October 22, 1992, motion, including his request to grant an absolute divorce instead of a divorce from bed and board. Id. The husband filed a subsequent post-judgment motion on January 11, 1993, again alleging that the trial court had erred by not granting an absolute divorce. Id. On appeal, this court held that the time for filing a notice of appeal ran from the date the husband’s first postjudgment motion was partially denied. 636 So.2d at 459 (citing Ex parte Dowling, 477 So.2d 400, 404 (Ala.1985)).

A similar result was reached by this court in Gold Kist, supra. In Gold Kist, the employer filed a postjudgment motion requesting a reduction in the employee’s workers’ compensation benefits by the allowance of certain credits. 659 So.2d at 626. In response, the trial court partially reduced the award of benefits by allowing some credit. Id. After that amendment, the employer filed a second postjudgment motion requesting the same relief it had sought in the first motion. 659 So.2d at 626-627. This court concluded that the time for filing an appeal ran from the date of the partial denial of the employer’s first postjudgment motion. Id. Because the employer filed its notice of appeal more than 42 days after the partial denial of the first postjudgment motion, this court dismissed the appeal as untimely. Id.

In this case, just as in Ollis and Gold Kist, the wife’s second postjudgment motion requested the trial court to “alter, amend, or vacate” its partial denial of the wife’s first postjudgment motion. In response to the wife’s first postjudgment motion, the trial court granted the wife’s request for a name change but denied her motion with regard to the issue of alimony. The wife then filed a second postjudgment motion again asking the trial court to address the issue of alimony. Her second postjudgment motion sought essentially the same relief requested in her first post-judgment motion and thus did not toll the time for taking an appeal. Therefore, in order to be timely, the wife’s notice of appeal must have been filed within 42 days of December 20, 2005, the date the trial court denied the wife’s first postjudgment motion as to the issue of alimony.

However, the wife’s notice of appeal was not filed until March 21, 2006, 91 days after the trial court denied her first post-judgment motion. Therefore, the notice of appeal was untimely filed, and we must dismiss the appeal for lack of appellate jurisdiction. Gunnison-Mack v. State Pers. Bd., 923 So.2d 319 (Ala.Civ.App. 2005).

APPEAL DISMISSED.

THOMPSON, P. J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.


author: THOMAS, Judge.

text:
    Michael RYANS v. STATE ex rel. Pennie STOUDMIRE.
    2050938.
    Court of Civil Appeals of Alabama.
    Feb. 9, 2007.
    Joan B. Singleton, Bessemer, for appellant.
    Troy King, atty. gen., Sharon E. Fic-quette and Jennifer M. Bush, asst, attys. gen., Department of Human Resources, for appellee.
   THOMAS, Judge.

Michael Ryans (“the father”) was adjudicated to be the father of Veronica Grace (“the child”) in 1985; he was ordered to pay child support. The father unsuccessfully sought a modification of his child-support obligation in 1992. In 2002, the State of Alabama, on behalf of the child’s mother, Pennie Stoudmire, filed an action in the juvenile court of Jefferson County, Bessemer Division, seeking to have the father held in contempt for failing to pay child support and to establish a total child-support arrearage of over $10,000, not including interest. The father moved to dismiss the action, arguing that the child was over the age of majority, that the mother had received a lump-sum payment for the child’s benefit in 1994 based on a determination that the father was entitled to Social Security disability benefits, and that the mother had thereafter received monthly Social Security disability checks for the benefit of the child. Ultimately, the juvenile court found the father not to be in contempt and ordered that the father pay $1,207 in principal and $1,682.82 in interest to the State as a repayment of moneys provided to the child pursuant to the Aid for Dependent Children (“ADC”) program. The juvenile court entered its order on April 11, 2003. The father filed an untimely postjudgment motion on April 29, 2003. The juvenile court, however, purported to deny the father’s untimely postjudgment motion on May 6, 2003.

The father then filed an appeal to the Jefferson Circuit Court, Bessemer Division, on May 22, 2003. The circuit court dismissed the father’s appeal on March 15, 2006, for lack of prosecution. The father filed a postjudgment motion seeking reinstatement of the appeal; the circuit court denied that motion on May 31, 2006. The father then filed a second postjudgment motion seeking reinstatement of his appeal, which the circuit court denied on June 26, 2006. The father filed his notice of appeal to this court on August 4, 2006.

The State argues that the father’s original appeal from the juvenile court to the circuit court was untimely and that the father’s appeal to this court was also untimely. The State is correct on both counts.

The father’s April 29, 2003, post-judgment motion was filed more than 14 days after'the juvenile court entered its April 11, 2003, judgment. See Rule 1(B), Ala. R. Juv. P. (stating that all post-judgment motions in juvenile cases must be filed within 14 days of the entry of judgment). An appeal from a juvenile court’s judgment must be filed within 14 days of the entry of that judgment. Rule 28(C), Ala. R. Juv. P., and Rule 4(a)(1)(E), Ala. R.App. P. The father’s untimely motion did not toll the expiration of the 14-day period for taking an appeal from the juvenile court’s judgment. See C.D.W. v. State ex rel. J.O.S., 852 So.2d 159, 161 (Ala.Civ.App.2002). The father’s appeal from the juvenile court to the circuit court, which was filed more than 14 days after the entry of the juvenile court’s judgment, was therefore untimely. C.D.W., 852 So.2d at 161. Thus, the circuit court never acquired jurisdiction over the father’s appeal. Id.

Ordinarily, we would affirm the circuit court’s dismissal of the father’s appeal. However, the father’s appeal from the circuit court to this court was also untimely. After the circuit court dismissed the father’s appeal on March 15, 2006, the father filed a postjudgment motion seeking reinstatement of the appeal on April 14, 2006, or 30 days after the circuit court’s dismissal. That motion, however, was untimely because it was required to be filed within 14 days of the entry of the judgment of dismissal even though the case was proceeding as an appeal for a trial de novo in the circuit court. See Rule 1(B), Ala. R. Juv. P. (“Procedure shall be uniform in all courts, whether at circuit or district court level or in the circuit court by trial de novo.” (emphasis added)). The circuit court considered the father’s motion, and, after holding a hearing and requesting a written response from the father, the circuit court purported to deny that motion on May 31, 2006. The father should have filed a notice of appeal to this court on or before March 29, 2006, which was 14 days after the circuit court’s dismissal of his appeal from the juvenile court. The father’s untimely post-judgment motion did not toll the time for taking an appeal. C.D.W., 852 So.2d at 161.

On June 21, 2006, the father filed a second postjudgment motion seeking reinstatement of his appeal. That motion was a successive postjudgment motion and, even if the first postjudgment motion had been timely, would not have further tolled the time for taking an appeal. Ex parte Allstate Life Ins. Co., 741 So.2d 1066, 1071 (Ala.1999) (holding that the plaintiffs’ “renewed motion to vacate” and “motion to reconsider” the denial of their original postjudgment motion were prohibited and that the plaintiffs’ only remedy was to have appealed the denial of the original postjudgment motion); see also Ollis v. Ollis, 636 So.2d 458, 459 (Ala.Civ.App.1994), and Foster v. Foster, 636 So.2d 467, 467-68 (Ala.Civ.App.1994). The circuit court purported to deny the father’s second postjudgment motion on June 26, 2006, and the father then filed a notice of appeal to this court on August 4, 2006. The purported denial of the father’s June 21, 2006, motion on June 26, 2006, was not the proper date from which to base the expiration of the 14-day period for taking an appeal. Thus, having been filed 142 days after the dismissal of the father’s appeal from the juvenile court, the father’s notice of appeal to this court was untimely filed. Accordingly, we dismiss the father’s appeal. See Holmes v. Powell, 363 So.2d 760, 762 (Ala.1978) (“A timely filing of the notice of appeal is jurisdictional, ... the sanction to be applied for an untimely filing being dismissal.”).

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, ' BRYAN, and MOORE, JJ., concur.


author: BRYAN, Judge.

text:
    N.H. v. T.A.P.
    2050908.
    Court of Civil Appeals of Alabama.
    Feb. 9, 2007.

      David Murphree, Birmingham, for appellant.
    Charles H. Dunn of Boyd, Fernambucq, Vincent & Dunn, Birmingham, for appel-lee.
   BRYAN, Judge.

T.A.P. sued N.H. (“the mother”) in July 2005, asserting that he was the biological father of T.A.P., Jr. (“the child”), alleging that the child was dependent, and seeking custody of the child.

At trial T.A.P. admitted that his initial allegation that the mother had denied the child medical care was not true. T.A.P. also stated that he felt it would be in the best interests of the child for the child to be placed into his custody. T.A.P. made no effort to prove that the child was dependent. Although T.A.P.’s initial complaint did not request child support, T.A.P. stated at trial that he was also seeking child support. The mother did not object to T.A.P.’s request for child support, and the issue was evidently tried by the consent of the parties. See Rule 15(b), Ala. R. Civ. P. (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”).

The trial court determined T.A.P. to be the biological father of the child, granted physical custody of the child to T.A.P. (hereinafter “the father”), and ordered that the parties should continue the visitation schedule already in place; however, it did not address the issue of child support in its judgment. The mother appeals the trial court’s judgment to this court.

However, we cannot address the merits of the mother’s appeal because we lack jurisdiction over her appeal. -Although neither party has questioned this court’s appellate jurisdiction, jurisdictional matters are of such importance that we take notice of them at any time and do so even ex mero motu. E.g., Wright v. Wright, 882 So.2d 361, 363 (Ala.Civ.App.2003). This court does not have jurisdiction over an appeal from an order or judgment that is nonfinal. See, e.g., K.L.U. v. M.C., 809 So.2d 837, 840 (Ala.Civ.App.2001). The reviewing court, on a determination that a judgment is not final, has a duty to dismiss the case. Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006).

A final judgment is one that “ ‘disposes of all claims or the rights and liabilities of all parties.’ ” Wright, 882 So.2d at 363 (quoting Carlisle v. Carlisle, 768 So.2d 976, 977 (Ala.Civ.App.2000)). In Anderson v. Anderson, 899 So.2d 1008, 1009 (Ala.Civ.App.2004), this court stated that “[w]here a party has requested child support and the trial court’s purported judgment contains no conclusive assessment of the child-support obligation, the trial court has not completely adjudicated the matters in controversy between the parties.” This court dismissed the appeal in Anderson because the trial court did not determine the amount of the mother’s child-support obligation as had been requested by the father in his counterclaim. Id. at 1010.

In the case now before us, the father made a claim for child support at trial. The trial court’s judgment did not dispose of that claim. Therefore, the trial court’s judgment was not a final judgment. See Wright.

Accordingly, we must dismiss the mother’s appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . The fact that this case began as a dependency proceeding but was tried as a custody dispute may raise questions as to the trial court's jurisdiction over the matter; however, the fact that the parents of the child were never married indicates that the trial court was the proper forum to determine the custody of the parties' child. See Thomas v. Vanhorn, 876 So.2d 488, 489 n. 1 (Ala.Civ.App.2003)(noting that in Jefferson County the Jefferson Family Court exercises jurisdiction over juvenile-court actions); § 12-15-31(2), Ala.Code 1975 (providing that juvenile courts shall have exclusive original jurisdiction in proceedings to establish paternity of a child born out of wedlock); and § 12—15—30(b)(1), Ala.Code 1975 (providing that juvenile courts shall exercise exclusive original jurisdiction of proceedings to determine custody of a child when the child is otherwise before the court).


author: THOMAS, Judge. PITTMAN, Judge,

text:
    W.C.R. v. D.A.L. and D.L.
    2050782.
    Court of Civil Appeals of Alabama.
    Feb. 9, 2007.

      Glenn Carlyle Noe, Sulligent, for appellant.
    James K. Davis of Fite, Davis, Atkinson, Guyton & Burt, P.G., Hamilton, for appel-lees.
   THOMAS, Judge.

D.A.L. and D.L. are the adoptive parents of W.T.R. (“the child”), who they adopted in March 2001. The child’s biological father, W.C.R., had continued to maintain a relationship with the child since the adoption, visiting the child regularly until early 2006, when the adoptive parents refused him visitation because he had instituted this action seeking to have the child declared dependent and seeking an award of custody or visitation with the child.

The biological father’s petition alleged, among other things, that the child was not being adequately supervised by the adoptive parents. He specifically alleged that the child had access to firearms and gasoline and had burned down a field while unsupervised and that the child was allowed to ride a four-wheeled all-terrain vehicle (“ATV”) and a dirt bike without a helmet.

The adoptive parents filed a motion for a summary judgment on the basis that the biological father lacked standing to bring his action. The adoptive parents filed their own affidavit; an affidavit from Annette Webb Haney, the probate judge who had presided over the biological father’s petition to set aside the adoption; and excerpts of their own depositions. In addition, the adoptive parents amended their summary-judgment motion to assert that the biological father was the only person to ever make allegations that the child was dependent.

The juvenile court held a hearing at which the adoptive father testified. The adoptive father’s testimony was, in large part, aimed at refuting the dependency allegations made by the biological father. The biological father objected to this testimony, arguing that the only issue raised in the summary-judgment motion was the issue of his standing. The juvenile court overruled the biological father’s objection and permitted the testimony. The adoptive father did testify to a few facts that were aimed at establishing that the biological father lacked standing: that the adoptive parents had adopted the child and that the biological father was the only person to have ever made any dependency allegations. The adoptive parents’ joint affidavit stated that the child had been adopted by them, that the biological father had consented to the adoption, that the biological father was given no visitation rights in the adoption judgment, that the adoptive parents had allowed the biological father to visit the child, that the biological father had filed legal proceedings against the adoptive parents on two occasions, and that the adoptive parents no longer wished to allow the biological father to visit with the child. The affidavit from Judge Haney also stated that the biological father had no visitation rights with the child by virtue of the adoption judgment.

The juvenile court entered a summary judgment in favor of the adoptive parents. The biological father appeals, arguing that the juvenile court erred by entering a summary judgment on the issue of standing, which he argues was the only issue before the juvenile court. The adoptive parents argue, however, that the juvenile court could have entered the summary judgment in their favor on another ground; specifically, they appear to argue that their assertion that the biological father was the only person to ever raise any dependency allegation and what they perceive as the juvenile court’s decision that the evidence at the summary-judgment hearing satisfied it that the child was not dependent are sufficient bases upon which to affirm the summary judgment.

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

The adoptive parents moved for a summary judgment on the issue of the biological father’s standing. As the biological father correctly argues, he has standing to bring a dependency petition so long as he has knowledge of the facts underlying the allegations of dependency. Ala.Code 1975, § 12-15-52(a) (“A petition may be signed by any person who has knowledge of the facts alleged or is informed of them and believes that they are true.”); Rule 12(A), Ala. R. Juv. P. (“Any person or agency having knowledge of the facts may make a complaint to the intake office.... ”). Although the biological father may not have had standing in another forum, the biological father’s petition invoked the dependency jurisdiction of the juvenile court. See Ala.Code 1975, § 12-15-30(a). The fact that the biological father has no rights to custody or visitation by virtue of the adoption of the child is irrelevant to a decision on the standing issue, as were the facts underlying the biological father’s dependency allegations. Thus, the juvenile court erred in concluding that the biological father had no standing to file his dependency petition.

The adoptive parents’ assertion that the biological father was the only person to have ever made dependency allegations regarding the child is not sufficient, even if true, to entitle the adoptive parents to a summary judgment in their favor. Establishing that fact does not resolve the issue whether the biological father had standing to bring his dependency petition or the issue whether the child is dependent. Even if the biological father was the only person to make dependency allegations, that fact is simply not material to any issue that would entitle the adoptive parents to a judgment as a matter of law. Rule 56(c)(3) (stating that a judgment should be entered in favor of the movant if the evidence demonstrates that there is no issue of material fact and the movant is entitled to a judgment as a matter or law).

Likewise, the adoptive parents’ argument that the juvenile court could have concluded that the child was not dependent based on the testimony of the adoptive father at the summary-judgment hearing fails. “A summary-judgment motion simply tests the merits of a case.” Rector v. Better Houses, Inc., 820 So.2d 75, 79 (Ala.2001) (citing Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated, § 56.2 (3d ed.1996)). The summary-judgment hearing had as its purpose to adduce facts necessary to determine whether there existed a genuine issue of material fact regarding the biological father’s standing to file his petition. Whether genuine issues of material fact existed regarding the biological father’s dependency allegations was not an issue raised in the adoptive parents’ motion .for a summary judgment. At the summary-judgment hearing, the biological father objected to the adoptive parents’ attempt, through the eliciting of the adoptive father’s testimony on the dependency allegations, to introduce that issue as an alternate ground for their summary-judgment motion; thus, the biological father was not required to present substantial evidence of those allegations at the summary-judgment stage. See Rector v. Better Houses, Inc., 820 So.2d at 80 (reiterating the rule that a nonmovant need not present substantial evidence of a particular element of his claim unless the movant has shifted the burden to the nonmovant by informing the court “where the [nonmovant’s] case suffers an evidentiary failure”); cf. McKenzie v. Killian, 887 So.2d 861, 864-65 (Ala.2004) (holding that the silence of the record regarding whether the nonmovant objected to the movant’s possible departure from the ground relied upon in the movant’s summary-judgment motion resulted in a presumption that the nonmovant waived any objection to notice the nonmovant may have had under Rule 56(c)).

Accordingly, we reverse the summary judgment entered in favor of the adoptive parents and remand the cause to the juvenile court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and BRYAN and MOORE, JJ., concur.

PITTMAN, J., concurs specially.

PITTMAN, Judge,

concurring specially.

I concur in 'the main opinion, especially that portion declining to address the propriety of the summary judgment on the alternative basis that there is no genuine issue of material fact concerning the dependency of the child.

“[The rule that an appellate court] will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court .... fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as ... where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant’s evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element.”

Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003) (emphasis added). I would add, however, that there is no procedural impediment on remand to the filing of a second summary-judgment motion challenging the factual basis of the biological father’s dependency petition. See, e.g., McLemore v. Fleming, 659 So.2d 623 (Ala.Civ.App.1994) (affirming second summary judgment entered after remand from this court’s reversal of first summary judgment).


author: PER CURIAM.

text:
    Kristy Cantrell HAWKINS v. Elijah O’Neil CANTRELL.
    2050413.
    Court of Civil Appeals of Alabama.
    Feb. 16, 2007.
    Glenn Carlyle Noe, Sulligent, for appellant.

      Submitted on appellant’s brief only.
   PER CURIAM.

Kristy Cantrell Hawkins (“the mother”) appeals from a judgment denying her request for an award of child support.

During the mother’s marriage to Elijah O’Neil Cantrell (“the father”), a child was born of them. In May 1995, the parties were divorced. The divorce judgment awarded the mother sole legal and physical custody of the child. In August 1998, on petition of the father, the trial court modified the judgment of divorce and incorporated the parties’ agreement into its modification judgment, which stated, in pertinent part:

“That full care, custody and control of the parties minor child ... be awarded to [the father],
“That Child Support shall be temporarily abated for the following reasons:
“[The mother] has applied for Social Security Disability benefits which is currently under consideration by the Social Security Administration.
“Should [the mother] qualify for Disability benefits all benefits payable to [the minor child] by the Social Security Administration shall satisfy [the mother’s] child support obligation. “Should [the mother] be denied Social Security benefits, child support payments shall be calculated according to Rule 32 [Ala. R. Jud. Admin.] with [the mother’s] current income or upon minimum wage, whichever is greater and said child support order shall be effective upon date of [the father’s] filing of the [petition] to [m]odify herein.”

The mother subsequently received supplemental security income (“SSI”) in the amount of $571 a month, but her claim for Social Security disability benefits was ultimately denied. After the denial of the mother’s application for disability benefits, the parties did not seek, and the court did not enter, any further order regarding the mother’s duty to pay child support; the trial court neither calculated nor ordered a specific child-support amount to be paid by the mother, and no further action was taken by the father to collect child support from the mother. The mother did not make any child-support payments.

In October 2004, the mother filed a complaint seeking, among other things, a modification of custody. The father filed an answer to the mother’s complaint and a counterclaim. After hearing oral testimony and considering other evidence, the trial court determined that a material change in circumstances had occurred and that a change in custody to the mother would materially promote the child’s best interests and more than offset any the disruptive effects the change in custody might cause. See generally Ex Parte McLendon, 455 So.2d 863, 866 (Ala.1984). However, the trial court did not require the father to pay child support to the mother “due to [the father’s] supporting the child without contribution by the mother for over eight years.” The mother filed a postjudgment motion, which was denied in pertinent part; the mother timely appealed to this court.

On appeal, the mother contends that the trial court erred in deviating from the child-support guidelines set out in Rule 32, Ala. R. Jud. Admin., by refusing to award her child support. Specifically, she contends that her failure to pay child support in the past does not support a finding that the application of the guidelines would be unjust or inequitable because, she says, she was not required under the August 1998 judgment to pay child support.

It is well settled that “[w]hen a trial court bases its decision on ore tenus evidence, its judgment is presumed correct and will not be reversed on appeal absent a plain and palpable abuse of discretion.” Leopold v. Leopold, 955 So.2d 1031 (Ala.Civ.App.2006). Although guided by the mandatory application of Rule 32, Ala. R. Jud. Admin., a decision concerning child support rests soundly within the trial court’s discretion and will not be disturbed on appeal absent a showing that the ruling is plainly and palpably wrong. Preda v. Preda, 877 So.2d 617, 621 (Ala.Civ.App.2003).

Rule 32(A), Ala. R. Jud. Admin., provides, in pertinent part:

“There shall be a rebuttable presumption, in any judicial or administrative proceeding for the establishment or modification of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded. A written finding on the record indicating that the application of the guidelines would be unjust or inappropriate shall be sufficient to rebut the presumption if the finding is based upon:
“(ii) A determination by the court, based upon evidence presented in court and stating the reasons therefor, that application of the guidelines would be manifestly unjust or inequitable.
“... The court may deviate from the guidelines ... if evidence of other reasons justifying deviation is presented.”

The mother relies on Knight v. Norris, 607 So.2d 274 (Ala.Civ.App.1992), to support her contention. In Knight, the trial court awarded the mother custody of the minor child and child support. The trial court deviated from the guidelines established in Rule 32, Ala. R. Jud. Admin., in its child-support award because the mother had not paid child support while the child had been in the father’s custody. The evidence in Knight indicated that the mother had not been required to pay child support during the father’s custodial period, and this court stated:

“Although the trial court did not state that the application of the guidelines would be manifestly unjust or inequitable, it did make a finding of fact that it had deviated from Rule 32 because the mother had not paid support while the father had custody. We find that the trial court’s finding of fact implicitly satisfies the requirement of Rule 32. However, we agree with the mother that, under the facts of this case, her failure to pay child support would not support a finding that the application of the guidelines would be unjust or inequitable.”

607 So.2d at 276; accord DeYoung v. DeYoung, 853 So.2d 967, 970 (Ala.Civ.App.2002) (“Deviating from the child-support guidelines based on a parent’s misconduct penalizes the offending parent but also punishes the children because they may receive less financial support than both parents are capable of providing.”).

Under those cases, the refusal of a trial court to impose a child-support obligation upon a noncustodial parent based on the custodial parent’s past failure to pay child support is not an appropriate remedy. A child has a fundamental right under our law to support from that child’s parents that the parents themselves cannot waive. State ex rel. Shellhouse v. Bentley, 666 So.2d 517 (Ala.Civ.App.1995). “All minor children have a fundamental right to parental support and that right is-deemed to be a continuing right until the age of majority.” Ex parte State ex rel. Summerlin, 634 So.2d 539, 541 (Ala.1993); see also Bank Independent v. Coats, 591 So.2d 56, 60 (Ala.1991) (“[T]he public policy of this state [provides] that parents cannot abrogate their responsibilities to their minor children by mutual agreement between themselves so as to deprive their minor children of the support to which they are legally entitled.”). Similarly, a minor child’s fundamental right to support from his parents may not be offset by amounts one parent may owe to another. Floyd v. Abercrombie, 816 So.2d 1051, 1056 (Ala.Civ.App.2001) (“Allowing such a credit against a child-support obligation would, essentially, require the child to repay the custodial parent’s debt to the noncustodial, support-paying spouse.”).

The trial court’s decision not to award child support to the mother on the ground that the mother had failed to pay child support during the period in which the father had custody is in error. Based on the foregoing, we reverse the judgment of the trial court and remand the case for the trial court to award child support to the mother pursuant to the child-support guidelines (see Rule 32, Ala. R. Jud. Admin.).

REVERSED AND REMANDED

All the judges concur.

      . We note that Rule 32(B)(2), Ala. R. Jud. Admin’., includes disability payments in, but excludes SSI from, a party’s "gross income” for purposes of calculating child-support obligations pursuant to the guidelines.


author: THOMPSON, Presiding Judge.

text:
    BancTRUST COMPANY, INC., an Alabama trust company, as successor trustee under a trust agreement wherein Eileen McDonald Walker is grantor and original trustee v. Charles F.R. GRIFFIN, as executor of the estate of Cheryl Walker Griffin, deceased; Charles F.R. Griffin, individually; and Regions Bank, as executor of the estate of Ion S. Walker, deceased.
    2050914.
    Court of Civil Appeals of Alabama.
    Feb. 16, 2007.

      Ralph G. Holberg III and Michael R. Holberg of Holberg & Holberg, P.C., Mobile, for appellant.
    Robert E. Clute, Jr., and R. Gregory Watts of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellee the Griffin estate.
    Mack B. Binion of Briskman & Binion, P.C., Mobile, for appellee Charles F.R. Griffin, individually.
    Henry Lomax Cassady, Jr., of Max Cas-sady, P.C., Fairhope, for appellee Ion Walker estate.
   THOMPSON, Presiding Judge.

In May 2004, BancTrust Company, Inc. (“BancTrust”), as successor trustee for a trust created by Eileen McDonald Walker (“the trust”), sued Charles F.R. Griffin, individually and as executor of the estate of Cheryl Walker Griffin, and Regions Bank, as executor of the estate of Ion S. Walker. In its complaint, BancTrust sought restitution for certain amounts paid from the trust for the benefit of Charles Griffin and Cheryl Griffin. We are dismissing this appeal as untimely; therefore, we need not discuss the specific factual allegations underlying this action.

The parties conducted discovery and filed various motions. Shortly before a scheduled trial, Charles Griffin, in both his individual and his representative capacity (hereinafter “Griffin”), moved to dismiss the action for lack of subject-matter jurisdiction. In that motion to dismiss, Griffin argued that BancTrust lacked standing to prosecute the action; the estate of Ion Walker later moved to join Griffin’s motion to dismiss. On April 17, 2006, the trial court entered a judgment concluding that BancTrust lacked standing and dismissing the action with prejudice. In entering that judgment, the trial court found, among other things, that the parties had stipulated to the admissibility of certain evidence upon which it had relied in reaching its judgment.

On April 19, 2006, BancTrust filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. In that motion, among other things, BancTrust challenged the trial court’s finding that it had stipulated to the admissibility of all the evidence recited in the trial court’s April 17, 2006, judgment and relied upon by the trial court. In the April 19, 2006, postjudgment motion, Banc-Trust asserted, among other things, that the evidence to which it objected was not relevant.

On April 26, 2006, the trial court entered an “amended order” that was substantially similar to the original April 17, 2006, judgment. However, in the April 26, 2006, order the trial court noted that BancTrust had objected to the admissibility of some of the evidence upon which it had relied. The trial court stated in its April 26, 2006, order that the evidence to which Banc-Trust had objected was relevant and admissible and that it had considered the evidence in reaching its decision. Accordingly, the trial court again ordered that the entire action be dismissed with prejudice.

Thereafter, on May 16, 2006, BancTrust filed a motion purportedly pursuant to Rule 59, Ala. R. Civ. P. In that motion, BancTrust stated that it was adopting “all those grounds, reasons, authority, motions and arguments” it had asserted in its April 19, 2006, postjudgment motion. On May 30, 2006, the trial court entered an order purporting to address BancTrust’s April 19, 2006, motion and denying that motion; moreover, in that order, the trial court also purported to dismiss the action without prejudice. BancTrust filed a notice of appeal on July 7, 2006. The case was transferred to this court by.the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

We note that BancTrust designated only a portion of the materials before the trial court for inclusion in the record on appeal. Therefore, Griffin designated additional materials to be included in the record on appeal. See Rule 10(b)(1), Ala. R.App. P. (allowing an appellee to designate that additional materials or all materials be included in the record on appeal). Among other things, Griffin included in his designation of additional materials to be included in the record certain letters written by Griffin’s attorneys to the trial court in April 2006; those letters were designated as an “exhibit.”

Initially, we note that the parties did not address the timeliness of this appeal in the briefs submitted to this court. Therefore, given the procedural history of this case, this court issued an order requesting that the parties file letter briefs on the issue of the timeliness of this appeal.

“The timely filing of [a] notice of appeal is a jurisdictional act.” Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006) (“an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived”).

In this case, the trial court entered a final judgment dismissing BancTrust’s action on April 17, 2006. BancTrust filed a postjudgment motion on April 19, 2006, well within the 30-day time limitation on the filing of postjudgment motions pursuant to Rule 59, Ala. R. Civ. P. The trial court had jurisdiction to rule on the post-judgment motion for 90 days following the April 19, 2006, filing of BancTrust’s post-judgment motion. See Rule 59.1, Ala. R. Civ. P.

On April 26, 2006, the trial court entered an “amended order.” According to the appellees, the April 26, 2006, order was a postjudgment order entered in response to BancTrust’s April 19, 2006, postjudgment motion. The appellees contend that the time for taking an appeal began to run when the trial court entered the April 26, 2006, amended order, and that BancTrust’s July 7, 2006, notice of appeal was therefore not timely.

In arguing that the appeal is timely, BancTrust relies on two letters dated April 17, 2006, and April 18, 2006, and collectively labeled “exhibit A” that Griffin included in his designation of additional materials for inclusion in the record on appeal. Attached to one of those letters was a proposed amended order that is substantially similar to the judgment the trial court had entered on April 17, 2006, and identical to the amended order it subsequently entered on April 26, 2006. In those letters, the attorneys for Griffin urged the trial court to amend its April 17, 2006, judgment to reflect that BancTrust had objected to the admissibility of certain evidence. Banc-Trust contends that the trial court amended its original judgment on April 26, 2006, in response to the April 17, 2006, and April 18, 2006, letters and that the date of that amendment should be considered to be April 17, 2006, the date of the original judgment. According to BancTrust, the April 26, 2006, amended order should not be considered to have been entered in response to its April 19, 2006, post-judgment motion, and, accordingly, it asserts that its May 16, 2006, postjudgment motion was merely a renewal of its still-pending April 19, 2006, postjudgment motion.

However, as stated earlier, BancTrust filed its April 19, 2006, postjudgment motion that, in part, sought the change in the trial court’s judgment that the trial court ultimately made in its April 26, 2006, amended order. Further, although the parties failed to address the issue, it does not appear that the April 17, 2006, and April 18, 2006, letters are properly before this court as a part of the record on appeal. Rule 10(b)(1), Ala. R.App. P., provides, in part, that “[t]he clerk’s record shall consist of such photocopied parts as the parties may designate of the original documents, written charges, papers, including but not limited to docket entries, minute entries, and exhibits (see Rule 11(e)) on file in the trial court clerk’s office .... ” (Emphasis added.) The April 17, 2006, and April 18, 2006, letters, although designated by Griffin as “exhibits” for inclusion in the record on appeal, were not filed with the trial court clerk or submitted in support of a filing in the trial court. Thus, it does not appear that those letters were properly included in the record on appeal pursuant to Rule 10(b)(1), Ala. R.App. P.

Even assuming that those letters were properly included as part of the record on appeal, however, we cannot agree with BancTrust’s argument that the appeal is timely. The trial court’s April 26, 2006, amended order did not explicitly address the pending postjudgment motion and did not specifically rule on that motion. However, that order did change the April 17, 2006, judgment in a manner requested by BancTrust in its April 19, 2006, post-judgment motion. Accordingly, we conclude that the April 26, 2006, amended order was a postjudgment order entered in response to the April 19, 2006, post-judgment motion.

An appeal must be filed within 42 days of the entry of a judgment or the denial of a postjudgment motion. Rule 4(a)(1) and (3), Ala. R.App. P. Rather than filing an appeal, BancTrust, on May 16, 2006, filed another postjudgment motion. In the May 16, 2006, motion, BancTrust asserted the same grounds it had asserted in its original, April 19, 2006, postjudgment motion. However, “[rjeview of the denial of a post-judgment motion is by appeal. ... Successive post-judgment motions by the same party, seeking essentially the same relief, are not allowed.” Gold Kist, Inc. v. Griffin, 659 So.2d 626, 627 (Ala.Civ.App.1994). See also Foster v. Foster, 636 So.2d 467 (Ala.Civ.App.1994) (appeal held to be untimely when appellant had filed two postjudgment motions pursuant to Rule 59, Ala. R. Civ. P.). Our supreme court has explained that successive postjudgment motions are allowed and will toll the time for taking an appeal only in limited circumstances:

“[T]he Rules of Civil Procedure do not authorize a movant to file a motion to reconsider the trial judge’s ruling on his own post-judgment motion. However, in some cases such successive post-judgment motions may be permitted. If, for example, the judge has rendered a new judgment pursuant to a Rule 59(e) motion to alter, amend, or vacate a judgment or pursuant to a Rule 50(b) motion for judgment notwithstanding the verdict, the party aggrieved by the new judgment may have had no reason to make such a motion earlier.”

Ex parte Dowling, 477 So.2d 400, 404 (Ala.1985).

The April 26, 2006, amended order was not a new judgment, and the May 16, 2006, postjudgment motion sought the same relief as the original postjudgment motion. Therefore, the May 16, 2006, motion was a successive postjudgment motion that did not toll the time for taking an appeal.

In order to be timely and invoke the jurisdiction of this court, BancTrust’s notice of appeal was required to have been filed within 42 days of the entry of the April 26, 2006, postjudgment order. Rule 4(a)(1), Ala. R.App. P.; Ollis v. Ollis, 636 So.2d 458 (Ala.Civ.App.1994); and Alabama Ass’n of Rescue Squads v. State Dep’t of Public Health, 575 So.2d 1130 (Ala.Civ.App.1991). BancTrust’s notice of appeal was filed well outside the 42 days allowed by Rule 4(a)(1), and, therefore, the appeal was untimely filed. Accordingly, we must dismiss the appeal. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”).

APPEAL DISMISSED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.


text:
    Ex parte James F. ROBERTSON III. (In re James F. Robertson III v. Cynthia D. Robertson).
    2060225.
    Court of Civil Appeals of Alabama.
    Feb. 16, 2007.
    James F. Robertson III, pro se.
    Submitted on petitioner’s brief only.
   PER CURIAM.

James F. Robertson III (“the husband”), an inmate at the Fountain Correctional Facility, acting pro se, petitions this court to issue a writ of mandamus ordering the Escambia Circuit Court to enter a default judgment in his favor in his divorce action against Cynthia D. Robertson (“the wife”). For the reasons discussed below, we deny the husband’s petition.

The husband sued the wife for a divorce in March 2006. His complaint listed an address in Baldwin County as the wife’s last known address. In April 2006, the trial court notified the husband that the wife had not been served with process because she was not living at the address he had listed as her last known address in his complaint. The husband then filed an affidavit pursuant to Rule 4.3(d)(1), Ala. R. Civ. P., stating that, after diligent inquiry, he had not been able to discover the whereabouts of the wife. The trial court clerk then prepared a notice to be published and instructed the husband that it should be published in The Atmore Advance, a newspaper of general circulation in Escambia County, once a week for four consecutive weeks. The trial court clerk further instructed the husband that, after the notice had been published in The At-more Advance once a week for four consecutive weeks, he would need to obtain proof of publication from The Atmore Advance to file with the trial court.

The exhibits accompanying the husband’s mandamus petition include a copy of a bill issued by The Atmore Advance to the husband indicating that it charged him $147.00 for publishing a legal notice regarding the divorce action on “07/05/06-07/26/06” and a copy of a notice of the divorce action .that was apparently published in The Atmore Advance on July 5, 2006; however, it is unclear whether these exhibits were filed with the trial court. Moreover, the exhibits do not include any evidence establishing that an affidavit satisfying the requirement of Rule 4.3(d)(5) was filed with the trial court. Despite the apparent absence of such an affidavit, the husband nonetheless sent to the trial court clerk a motion seeking the entry of a default judgment by the clerk pursuant to Rule 55(b)(1), Ala. R. Civ. P. As the ground of his motion, the husband alleged that the wife had failed to answer or otherwise defend against the husband’s complaint within 30 days after the completion of service by publication. However, the trial court clerk returned the husband’s motion for a default judgment with a notice stating:

“I am returning your motion for entry of default for the following reasons: The court file shows no service of the defendant and, although the paperwork was done and submitted to you, there is no proof of publication in the file. Please contact whichever newspaper you had it published in to get the proof of publication. When we receive that, you can resubmit your motion. We will then put the motion on the next available motion docket and let the judge rule on it.”

The husband, however, apparently resubmitted his motion without any additional proof of publication, and the trial court judge denied the motion “for failure to comply with Rule 4.3, A[la.] R. C[iv.] P.” Subsequently, the husband moved the trial court judge to reconsider his denial of the husband’s motion, and the trial court judge denied the husband’s motion seeking reconsideration. Thereafter, the husband petitioned this court for a writ of mandamus ordering the trial court judge to enter a default judgment in the husband’s favor.

The Supreme Court stated the standard for issuance of a writ of mandamus in Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995):

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and properly invoked jurisdiction of the court.”

We must deny the husband’s petition because he does not have a legal right to the order sought — the husband has not established that the affidavit required by Rule 4.3(d)(5) was filed with the trial court.

PETITION DENIED.

All the judges concur.

      . Rule 4.3(d)(5) states:

        “Proof of Service. After the last publication, the publisher or the publisher’s agent shall file with the court an affidavit showing the fact of publication together with a copy of the notice of publication. The affidavit and copy of the notice shall constitute proof of service.”


text:
    Crystal June BLANKENSHIP v. Matthew Chad BLANKENSHIP.
    2050547.
    Court of Civil Appeals of Alabama.
    Feb. 23, 2007.
    Sherryl Snodgrass Caffey, Normal, for appellant.
    John F. Porter III, Scottsboro, for ap-pellee.
   BRYAN, Judge.

Crystal June Blankenship (“the mother”) appeals a partial default judgment awarding Matthew Chad Blankenship (“the father”) primary physical custody of the parties’ minor child, B.D.B. (“the child”). We dismiss the mother’s appeal because the partial default judgment from which the mother appeals is not a final, appealable judgment and, therefore, we lack jurisdiction.

On February 13, 2002, the father sued the mother for a divorce and sought an equitable division of the parties’ marital assets and marital debt, primary physical custody of the child, an award of child support, and an award of an attorney’s fee. The mother answered the father’s complaint and counterclaimed for a divorce. In addition to a divorce, the mother’s counterclaim sought an equitable division of the parties’ marital property and debt, primary physical and legal custody of the child, an award of child support, and an award of an attorney’s fee.

Pursuant to an agreement of the parties, the trial court initially awarded the mother pendente lite custody of the child and granted the father visitation; however, the trial court ultimately awarded pendente lite custody to the father and granted the mother visitation. On February 21, 2003, the trial court entered a judgment divorcing the parties but reserving all other issues for later adjudication.

Upon the motion of the father, the trial court, on April 21, 2005, entered an order compelling the mother to appear for a deposition and to produce documents the father had requested. When the mother failed to comply with the trial court’s April 21, 2005, order, the father moved the trial court to enter a partial default judgment against the mother as a sanction for her failure to comply with the April 21, 2005, order. Following a hearing, the trial court, on August 9, 2005, entered a partial default judgment against the mother. In pertinent part, that partial default judgment states:

“1. Default is hereby entered against the [mother] as to part of the relief claimed by the [father], and default is entered against the [mother] as to any claims she has now pending.
“2. Therefore, the [father] shall have the primary care, custody and control of the minor child, ....
“3. Notwithstanding the fact that the [mother] may appeal this Court’s entry of default, the parties, through counsel, are encouraged to resolve the remaining issues concerning visitation and child support. In the event that the parties do resolve the remaining issues, any such agreement, and the record in this case, will specifically state that such agreement does not prejudice the [mother’s] right to appeal the entry of this order. Further, for purposes of appeal, this order, wherein default was entered against the [mother], shall not be a final order but shall become a final order upon resolution of the remaining issues, either by agreement or by rulings from this Court.”

Pursuant to an agreement of the parties, the trial court, on February 22, 2006, entered a partial judgment adjudicating the issues of the mother’s visitation with the child and her child-support obligation. In pertinent part, that partial judgment states:

“10. The agreement of the [mother] to the entry of this order containing agreed provisions on visitation and child support does not prejudice the [mother’s] right to appeal the entry of the Order on Motion to Impose Sanctions and to Enter Default Judgment. Further, for the purpose of appeal, the Order on Motion to Impose Sanctions and to Enter Default Judgment was not a final order but became a final order upon the resolution of the remaining issues and the entry of this order.”

The mother then filed a notice of appeal to this court within 42 days after the entry of the February 22, 2006, partial judgment.

On appeal, the mother argues that the trial court erred in entering the partial default judgment awarding the father primary physical custody of the child. Although neither party has raised an issue regarding this court’s jurisdiction,

“ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979).”

Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006). See also § 12-22-2, Ala.Code 1975.

This court has previously stated:

“ ‘ “It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.” ’ Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999), quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981). This court has stated:
“ ‘A final judgment is one that completely adjudicates all matters in controversy between all the parties.
“ ‘... An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. In such an instance, an appeal may be had “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” See Rule 54(b), Ala. R. Civ. P.’ ”

Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala.Civ.App.2003) (quoting Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002)).

In the case now before us, the trial court had neither divided the parties’ marital property and debt nor certified the partial default judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., when the mother appealed from the partial default judgment. Consequently, the partial default judgment from which the mother appeals is not a final, appeal-able judgment. See Grubbs v. Grubbs, 729 So.2d 346 (Ala.Civ.App.1998) (dismissing an appeal from a divorce judgment because the divorce judgment did not divide all of the parties’ marital property and, therefore, was not a final judgment); accord McGill v. McGill, 888 So.2d 502, 505 (Ala.Civ.App.2004). Accordingly, we must dismiss the mother’s appeal because we lack jurisdiction.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . The child’s paternal grandparents intervened in this action in the trial court. However, because they are not parties to this appeal and their participation in the action in the trial court is not material to the disposition of this appeal, we have omitted discussion of their participation in the action.

      . The father’s claim for an attorney's fee also remained unadjudicated when the mother appealed. However, an unadjudicated claim for an attorney’s fee does not affect the finality of a judgment. See State Bd. of Educ. v. Waldrop, 840 So.2d 893, 899 (Ala.2002) (“a decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication").


text:
    J.W. v. C.H.
    2050687.
    Court of Civil Appeals of Alabama.
    Feb. 23, 2007.

      Connie Cooper, Phenix City, for J.W.
    Margaret Y. Brown, Auburn, for C.H.
   MOORE, Judge.

These appeals arise from a judgment following an ore tenus proceeding in which the Russell County Juvenile Court concluded that A.H., a minor child, was “dependent,” pursuant to § 12-15-1, Ala.Code 1975. Based on that finding, the trial court awarded custody of A.H. to C.H. J.W. appeals from the judgment awarding C.H. custody of A.H.; C.H. cross-appeals from the trial court’s earlier ruling, in which the trial court adjudicated J.W. to be the biological father of A.H.

Background

S.S.entered into a sexual relationship with C.H. while living with him in North Carolina in 2002. In 2004, while still in her relationship with C.H., S.S. also entered into a sexual relationship with J.W. S.S.became pregnant with A.H. When she learned of her pregnancy, she informed J.W. that he was the biological father of the baby, but, according to S.S., J.W. stated “he didn’t want to be in [A.H.]’s life unless he was with the mother of the child he was going to raise.” S.S. did not immediately inform C.H. of the paternity of the child so he believed he was the biological father during the pregnancy.

After A.H. was born, S.S. told C.H. of her sexual relationship with another man. Despite this information, C.H. stated he was willing to raise the child as his own and the two agreed C.H. would be A.H.’s father. C.H. signed the birth certificate as the father of A.H. Thereafter, S.S. and C.H. began raising A.H. together in Albany, Georgia.

When A.H. was approximately four or five months old, S.S. took A.H. and moved in with J.W. in Phenix City, Alabama C.H. paid child support to S.S. during this time. S.S. subsequently obtained genetic testing proving J.W. was the biological father of A.H. She sent these results to C.H., who then terminated child support payments.

S.S.moved out of J.W.’s home and returned to C.H.’s home with A.H. C.H. resumed his paternal relationship with A.H. S.S. agreed that while they lived together, C.H. provided for A.H. financially and emotionally. C.H. was good to A.H. and A.H. responded to C.H. as a child would to a parent. The three moved to North Carolina. However, C.H. soon left the home when he was assigned to military duty in Iraq. While he was away on duty, S.S.took A.H. back to Alabama without C.H.’s knowledge. C.H. believed S.S. and A.H. would await his return in North Carolina.

After S.S. returned to Alabama, her relationship with J.W. deteriorated. J.W. accused S.S. of, among other things, using illegal drugs, threatening him with violence, and becoming mentally unstable. S.S.accused J.W. of domestic violence, stalking, and criminal activity.

On November 7, 2005, the Russell County Department of Human Resources (“DHR”) initiated a dependency action regarding A.H. DHR alleged that J.W. had been charged with domestic violence, committed in the presence of A.H., and that S.S.was using illegal drugs.

On November 8, 2005, the juvenile court heard DHR’s petition. Based on an agreement of the parties, the court awarded temporary custody of A.H. to a maternal aunt. The court denied DHR’s motion for a shelter-care order, but ordered DHR to provide protective supervision for A.H. The trial court was notified at the November 8 hearing that C.H. had filed an affidavit of fatherhood and had not relinquished his rights to A.H.

On January 13, 2006, J.W. filed a petition alleging that A.H. was dependent. J.W. alleged that he was the biological father of A.H., and he requested temporary custody of A.H.; he also requested that A.H.’s paternity be determined by the court. The juvenile court joined this petition with DHR’s pending petition and set the matter for review on January 19, 2006.

On January 19, 2006, the juvenile court conducted a hearing on J.W.’s petition for a paternity determination without notifying C.H. At this hearing, J.W. and S.S. acknowledged that J.W. was the biological father of A.H. and asserted that they had obtained genetic testing to establish J.W.’s paternity. As a result, the trial court adjudicated J.W. the father of A.H. and awarded him visitation with her. A.H. remained in the temporary custody of the maternal aunt. The juvenile court scheduled another hearing for March 9, 2006.

At the March 9, 2006, hearing, C.H. filed a motion to set aside the paternity determination. C.H. asserted that he was in active military service and was not able to attend the hearing. However, he asserted that he was the presumed father of A.H. by law, that he was named on the birth certificate as the father of A.H., and that he had raised A.H. as his daughter from her birth. C.H. also asserted that, until he had been deployed to Iraq on active military duty, A.H. and S.S. had lived in his home and he had claimed and cared for A.H. as his daughter. C.H. also asserted that he was a necessary party to the January 19, 2006, proceeding in which the juvenile court adjudicated J.W. to be the father of A.H. Thus, he argued, the paternity adjudication should be set aside. Alternatively, C.H. asserted that, if the juvenile court found A.H. to be dependent, custody of A.H. should be awarded to him. C.H. also requested any hearing on the matter be continued until his military commitments would allow him to attend.

The court denied C.H.’s motion for a continuance and proceeded with the March 9, 2006, hearing. At the conclusion of the hearing, the trial court awarded J.W. temporary custody of A.H. and awarded visitation to S.S. The juvenile court also noted that “because the Court has concerns about drug use [by] the mother and domestic violence issues with the father, this matter shall be reviewed on the 20th day of April, 2006.”

On April 20, 2006, the juvenile court conducted a final hearing on the pending dependency and custody petitions. C.H. appeared with an attorney.- C.H. again moved the court to set aside its paternity determination and to award him custody of A.H. on the same grounds as set out in his March 9, 2006, motion.

The trial court - proceeded to take ore terms evidence from J.W., S.S., C.H., and a DHR representative, Latanjulla Benjamin. Benjamin testified S.S. had tested positive for methamphetamines on one occasion, but negative on two other occasions. Although J.W. tested negative on all DHR drug screens, he admitted to testing positive for marijuana in another court proceeding. Benjamin expressed concern for the volatile interactions between S.S. and J.W., . which, by the time of the hearing, had resulted in numerous criminal complaints being filed against both of them. Benjamin described an alarming verbal altercation between the two in the courthouse hallway that very day. She- also indicated J.W. was acting unreasonably by “investigating” S.S. and anyone involved with her at night, leaving A.H. at home with his brother. J.W. also made wild and unfounded complaints against the maternal aunt who he had originally agreed should have temporary custody of A.H. DHR had recommended psychological testing for J.W. at the onset of the case, but he never underwent the testing because, as J.W. explained, he could not afford it at the time and, once he could, DHR never scheduled it.

J.W. testified that S.S. was not a fit mother due to her illegal drug use, “instability,” and bad associates, some of whom had threatened him or attempted to assault him. He claimed to have seen drug paraphernalia at S.S.’s house, although he did not report' it to the police. He told DHR S.S. was paying people for their urine so she could pass her drug tests. He said S.S. had moved 29 times in the preceding 18 months and was now living with her new boyfriend in a bad environment.

In contrast, J.W. claimed he had financially supported A.H. from the time she was four months old. He testified he had lived in the same location for 20 years, that he was raising his 9-year-old daughter, and that he could financially provide for A.H. since he recently obtained a job paying $15.00 per hour. He said A.H. could stay in a nearby day care while he was working.

On cross-examination, J.W. admitted he had no documentation that he had provided any financial support for A.H. He also admitted that he took no action to claim paternity of A.H. until January 2006, after S.S.had instituted proceedings in an effort to obtain child support. He further affirmed he did not make any attempt to visit A.H. while she was living in Albany, explaining he had been threatened if he tried. He acknowledged S.S.’s aunt had filed a harassment charge against him, but claimed it had been “thrown out.” He further denied he spit in S.S.’s face a few days prior to the hearing.

S.S.testified J.W. only provided her $120 in child support after she moved out of his house. S.S. said J.W. made numerous threatening telephone calls to her, one or more of which was played for the trial court, and that J.W. followed her on at least one occasion. S.S. said J.W. interfered with her right to visit A.H. and spit in her face and tried to hit her when she returned A.H. from their last visit. S.S. said J.W. had also threatened her with a screwdriver. S.S. denied slashing J.W.’s tires, but admitted her new boyfriend threatened J.W. with physical harm if he J.W. put his hands on S.S. again. S.S. admitted she did not pay J.W. any child support while he had custody of A.H., but she explained that she had withheld support due to J.W.’s interference with her visitation rights.

S.S.denied she was a drug user, claiming that she had not used methamphetamine since January 2006. She also denied that she had moved 29 times. She said that, at the time of the hearing, she was working as a secretary for her boyfriend, making approximately $320 per week.

Finally, C.H. testified that he should be awarded custody of A.H. He believed that he could properly care for A.H. because his girlfriend and her three children were living with him; according to C.H., his girlfriend stays at home to take care of her children and could also care for A.H. C.H. did not believe that it was appropriate for either J.W. or S.S. to have custody of A.H., based on the things he had heard.

At the conclusion of this hearing, the juvenile court issued an order stating:

“After hearing testimony presented and taking the matter under advisement, it is evident to this Court that the natural parents are incapable of putting the child’s interests above their own.
“The Court finds that the parents would rather focus on their petty differences, to the detriment of the child, than focus on what is in the child’s best interest.
“Frankly, the Court can think of no other way to provide for the best interest of this child than to declare the child dependent and place the child in the custody of [C.H.], the petitioner in .03.
“THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
“1. That custody is hereby granted to [C.H.].
“2. That because of the constant domestic violence issues between [S.S.] and [J.W.], the Court will order visitation at the discretion of [C.H.] until such time as the parties can demonstrate to the Court that they have resolved those issues.
“3. That [S.S.] and [J.W.] shall pay child support in accordance with the Alabama Child Support Guidelines.”

On May 25, 2006, J.W. appealed the juvenile court’s judgment awarding C.H. custody of A.H. On June 2, 2006, C.H. cross-appealed the juvenile court’s January 19, 2006, order, specifically noting that he “appeal [ed] from the denial of his motion to set aside the paternity determination.” On June 13, 2006, this court ordered that enforcement of the juvenile court’s judgment be stayed pending further orders.

Standard of Review

“In matters concerning child custody and dependency, the trial court’s judgment is presumed correct on appeal and will not be reversed unless plainly and palpably wrong.” Ex parte T.L.L., 597 So.2d 1363, 1364 (Ala.Civ.App.1992); see also Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004). Additionally, in Ex parte Anonymous, 803 So.2d 542 (Ala.2001), the Alabama Supreme Court stated:

“The ore tenus rule provides that a trial court’s findings of fact based on oral testimony ‘have the effect of a jury’s verdict,’ and that ‘[a] judgment, grounded on such findings, is accorded, on appeal, a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust.’ Noland Co. v. Southern Dev. Co., 445 So.2d 266, 268 (Ala.1984). ‘The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.’ Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986).”

803 So.2d at 546.

Analysis

We first address C.H.’s appeal from the juvenile court’s adjudication of paternity on January 19, 2006. C.H. asserts that he was a necessary party to that proceeding and that, because he was not joined in that proceeding, the paternity adjudication must be set aside.

The Alabama Uniform Parentage Act, § 26-17-1 et seq., Ala.Code 1975, addresses the parties who must be joined in an action to determine a father and child relationship. Section 26-17-11, Ala.Code 1975, provides, in pertinent part:

“The natural mother, each man presumed to be the father under the provisions of Section 26-17-5, and each man alleged to be the natural father, shall be made parties or, if not subject to the jurisdiction of the court, shall be given notice of the action in a manner prescribed by the court and an opportunity to be heard.”

Thus, if C.H. meets the requirements of § 26-17-5, Ala.Code 1975, he is a “presumed father” and was a necessary party to J.W.’s petition to determine the paternity of A.H.

Section 26-17-5(a)(4), Ala.Code 1975, provides that “[a] man is presumed to be the natural father of a child if ... [wjhile the child is under the age of majority, he receives the child into his home or otherwise openly holds out the child as his natural child.” C.H. argues that he is AH.’s “presumed father” because he has met the requirements of § 26-17-5(a)(4).

Based on our review of the record, we agree. Although C.H. and S.S. never married, C.H. lived with S.S. during her pregnancy, C.H. was present during A.H.’s birth, and C.H. was named on the birth certificate as A.H.’s father. After. her birth, A.H. lived with C.H. and C.H. acted as A.H.’s father from the time of A.H.’s birth until the child was four to five months old. At that time, S.S. returned to Alabama with A.H. and - moved in with J.W. After several months with J.W., S.S. and A.H. returned to Georgia to live again with C.H., and then they moved with C.H. to North Carolina; at all times, C.H. treated A.H. as his own child.

For those reasons, we agree that C.H. has established that he received A.H. into his home or otherwise openly held her out as his natural child. Thus, C.H. is a presumed father under § 26-17-5.

We also note that all the parties to the proceeding in which J.W. was adjudicated to be the father of A.H. were aware of C.H.’s involvement with A.H. and that he claimed to be A.H.’s father. The juvenile court was also made aware of his existence and his claim. Although C.H. was out of the country at the time of that proceeding, had he been notified of J.W.’s petition for a paternity determination he would have been entitled to a deferment of that action until he returned from active military service, pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940. 50 App. U.S.C. § 501 et seq. '

Based on the foregoing, we conclude that C.H. was a necessary party to the paternity adjudication and that he was entitled to an opportunity to be heard on that issue before the juvenile court resolved that issue adversely to C.H. See Rule 19, Ala. R. Civ. P. (addressing the joinder of persons necessary for a just adjudication). We reverse the juvenile court’s paternity adjudication of January 19, 2006, in which J.W. was adjudicated to be the father of A.H., and we remand the action to the juvenile court for further proceedings on that issue consistent with this opinion.

We next address J.W.’s appeal from the juvenile court’s judgment awarding custody to C.H. As noted above, the juvenile court determined that A.H. was a “dependent child,” pursuant to § 12-15-1(10), Ala.Code 1975, and, as a result, it awarded custody of A.H. to C.H. It is well settled that the primary concern in cases of alleged dependency is the best interests of the child. R.D. v. Baldwin County Dep’t of Human Res., 608 So.2d 406 (Ala.Civ.App.1992).

“Although parents have a prima facie right to the custody of their child, this court has held that such right must always yield to the best interests of the child if it is shown that parental custody is contrary to those interests.”

Brown v. Alabama Dep’t of Pensions & Sec., 473 So.2d 533, 534 (Ala.Civ.App.1985).

Section 12-15-1, Ala.Code 1975, defines “dependent child” and provides numerous bases under which a court may determine a child to be dependent. Additionally, when determining the issue of dependency, a court may look at the totality of the circumstances. Martin v. State, 502 So.2d 769 (Ala.Civ.App.1987); Heup v. State Dep’t of Human Res., 522 So.2d 295 (Ala.Civ.App.1988). Further, because the juvenile court received ore tenus evidence and observed the witnesses’ demeanors, this court cannot reverse the juvenile court’s judgment unless it is unsupported by the evidence so as to be clearly and palpably wrong. Everett v. Everett, 660 So.2d 599, 602 (Ala.Civ.App.1995).

In this case, the juvenile court could have relied on a number of those bases identified in § 12-15-1, Ala.Code 1975, in concluding that A.H. was dependent. The juvenile court heard ore tenus evidence indicating that S.S. and J.W. have repeatedly engaged in very physical domestic violence in front of A.H. S.S. and J.W. have lodged numerous criminal charges against each other; S.S. and J.W. even engaged in an “alarming” argument in the courthouse hallway on the date of one of the hearings.

Additionally, a DHR representative testified that S.S. had tested positive for methamphetamine, an illegal substance. The juvenile court also heard testimony establishing that in September 2005 J.W. tested positive for marijuana use. Thus, the evidence indicates that both S.S. and J.W. have used illegal drugs.

The testimony also indicated that S.S.’s living arrangements and employment appeared unstable; the evidence indicated that she had moved frequently and had no long-term place of residence. She also had no long-term work history and thus no steady stream of income.

Although J.W.’s living arrangements appeared stable and long-term, DHR claimed that he refused to obtain a psychological examination as requested by DHR. Additionally, DHR expressed concern about J.W.’s behavior and questioned whether he was acting in an unreasonable manner by attempting to investigate S.S. and her friends on his own. In conducting his investigations, J.W. was leaving A.H. with his brother at night.

We cannot say that, considering this evidence and under the totality of the other evidence presented to the juvenile court, the juvenile court’s determination of dependency was clearly and palpably wrong. Therefore, we affirm the dependency determination.

Once a court determines that a child is dependent, the court is authorized to make any one of a number of dispositions. Among other things, the trial court may “[pjermit the child to remain with the parents, guardian, or other custodian of the child, subject to certain conditions and limitations as the court may prescribe”; “[tjransfer legal custody to ... [a] relative or other individual who, after study by the Department of Human Resources, is found to be qualified to receive and care for the child”; or “[m]ake any other order as the court in its discretion shall deem to be for the welfare and best interests of the child.” § 12-15-71(a)(l), (3)c., and (4), Ala.Code 1975.

In this case, the juvenile court made its determination of dependency and placed A.H. with C.H. We find no error in this placement. C.H. requested custody of A.H. and asserted that he had a parent-child relationship with A.H.; S.S.’s testimony confirmed the existence of this parent-child relationship between C.H. and A.H. All the evidence presented to the juvenile court indicated that C.H. would be an appropriate placement for A.H.; in fact, S.S. indicated that C.H. had always been good to A.H. and had willingly supported her. In placing A.H. with C.H., the juvenile court acted well within its authority.

J.W. also argues on appeal that the juvenile court erred in granting custody to C.H., who, J.W. asserts, is a nonparent, over him, because, he asserts, he is A.H.’s biological father. J.W. argues that as between a natural parent and a nonparent, the natural parent has a presumptive right to custody of his or her child. J.W.’s brief fails to acknowledge that the juvenile court determined A.H. to be a “dependent child” and that, thus, the court was authorized to consider A.H.’s welfare and best interests in placing her, even if that required placement with a nonparent. See § 12-15-71, Ala.Code 1975. The juvenile court did not improperly consider a nonparent over a natural parent in awarding custody of A.H., and we find no error in the juvenile court’s award of custody to C.H.

Conclusion

We reverse the juvenile court’s paternity adjudication of January 19, 2006, and we remand the action to the juvenile court for further proceedings consistent with this opinion. As to the juvenile court’s determination of dependency and its award of custody to C.H., we affirm the juvenile court’s judgment.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.