author: SHAW, Justice.

text:
    Ex parte Beverly SCANNELLY. (In re Beverly Scannelly v. Gary Toxey).
    1100226.
    Supreme Court of Alabama.
    June 30, 2011.

      James H. White IV and Stephen K. Pudner of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for petitioner.
    Jon B. Terry of Bains & Terry, Bessemer, for respondent.
   SHAW, Justice.

Beverly Scannelly petitions this Court for a writ of mandamus directing the Jefferson Circuit Court, Bessemer Division (“the Bessemer Division”), to vacate all orders entered after Scannelly filed a notice of dismissal pursuant to Rule 41(a), Ala. R. Civ. P., and for a writ of prohibition restraining that court from future attempts to exercise jurisdiction over Scannelly’s case. For the reasons stated below, we deny the petition.

Facts and Procedural History

In June 2009, Scannelly initiated a civil suit against her brother, Gary Toxey, in the Birmingham Division of the Jefferson Circuit Court (“the Birmingham Division”), seeking to void certain real-estate transfers by their father to Toxey and alleging that those transfers were the result of undue influence by Toxey. Scannelly’s complaint contained a legal description of each of the subject parcels.

Almost one year later, in May 2010, Toxey, in lieu of an answer, filed a motion pursuant to Rule 12(b), Ala. R. Civ. P., seeking to dismiss Scannelly’s complaint based on, among others, grounds that the Birmingham Division lacked subject-matter jurisdiction based on the locations of the subject real estate and that the doctrine of res judicata precluded her action. In support of his claim that Scannelly’s complaint was due to be dismissed pursuant to the doctrine of res judicata, Toxey’s motion included three attachments consisting of orders relating to the subject real estate issued by the Jefferson Probate Court.

After a hearing on Toxey’s motion, the Birmingham Division transferred the case to the Bessemer Division on August 13, 2010, based on the conclusion that “the only real property located within the territorial jurisdiction of Jefferson County lies in the Bessemer Division.... ” See § 12-11-11, Ala.Code 1975 (providing for a transfer to another court in same county in actions where “it shall appear to the court that any case filed therein should have been brought in another court in the same county”). The transfer order clearly indicated that, in transferring the case to the Bessemer Division, the court “[did] not address [Toxey’s] grounds to dismiss based on the affirmative defense of res judicata” because, it said, “[t]he matters necessary for the Court to review in considering [those] grounds lie outside of the parameters of [Scannelly’s] complaint or any documents referenced therein.” Therefore, the Birmingham Division noted, it left resolution of the issue of res judicata to the Bessemer Division.

Immediately following the transfer of her case to the Bessemer Division, on August 24, 2010, at 3:46 p.m., Scannelly filed, pursuant to Rule 41(a)(1), Ala. R. Civ. P., a “Notice of Dismissal of Claims” in which she purported to voluntarily dismiss all of her claims against Toxey without prejudice. In her notice, Scannelly alleged that no responsive pleading, either in the form of an answer or a motion for a summary judgment, had yet been filed in the matter. In response to Scannelly’s notice, and on that same date at 4:29 p.m., the Bessemer Division entered an order dismissing Scannelly’s case without prejudice. Also on August 24, at 4:42 p.m., Toxey filed in the Bessemer Division a motion to dismiss or, in the alternative, for a summary judgment. In that motion, Toxey renewed his argument “that the doctrine of collateral estoppel, res judicata, issue recursion [sic], equitable estoppel and the Alabama Rules of Civil Procedure prohibit retrying issues that have been tried or that should have been tried and alleged prior hereto.”

On August 26, 2010, Scannelly refiled her complaint in the Tuscaloosa Circuit Court, omitting her previous claims as to the real estate located in Jefferson County. In response, on August 31, 2010, Tox-ey filed in the Bessemer Division a motion seeking to reinstate Scannelly’s dismissed action to the Bessemer Division’s active docket and alleging, in pertinent part:

“1. The Order granting the Motion to Dismiss was done within just a few hours of the Motion being filed.
“2. The Defendant had begun preparing, but had not yet filed a Motion to Dismiss and/or in the Alternative Motion for Summary Judgment.
“3. Contrary to [Scannelly’s] [assertion] that no pleadings had been filed ... attacking the jurisdiction of the Court to even hear these matters and asking the Court to dismiss this case[, such pleadings] had already been filed in the Birmingham Division.
“4. It is obvious that the Court would not have been aware of this filing that went directly to the merits of [Scan-nelly’s] ability [to bring] this case because of the doctrines of res judicata and collateral estoppel.”

Thereafter, on October 19, 2010, the Bessemer Division granted Toxey’s motion to reinstate Scannelly’s action, set aside its August 24, 2010, order dismissing Scannelly’s case, and both returned the matter to the court’s active docket and scheduled a hearing. In support of that decision, the court specifically found “that the submission of [Toxey’s] amounted to the filing of a Motion for Summary Judgment pursuant to Ala. R. Civ. P. 12(b)(6) thereby precluding summary unilateral dismissal by [Scan-nelly] pursuant to Ala. R. Civ. P. 41(a).” Scannelly then filed the present petition seeking the above-described writs of mandamus and prohibition. On January 4, 2011, this Court ordered answers and briefs.

Standard of Review
“ ‘Mandamus is an extraordinary remedy and will be granted 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 (4) properly invoked jurisdiction of the court.” ’
“Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003)(quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). Mandamus will lie to direct a trial court to vacate a void judgment or order. Ex parte Chamblee, 899 So.2d 244, 249 (Ala.2004).
“Like mandamus, prohibition is an extraordinary writ, ‘and will not issue unless there is no other adequate remedy.’ Ex parte K.S.G., 645 So.2d 297, 299 (Ala.Civ.App.1992) (citing Ex parte Strickland, 401 So.2d 33 (Ala.1981)). ‘Prohibition is proper for the prevention of a usurpation or abuse of power where a court undertakes to act in a manner in which it does not properly have jurisdiction.’ Ex parte K.S.G., 645 So.2d at 299. A writ of prohibition will issue ‘[o]nly if the pleadings show on their face that the lower court does not have jurisdiction.’ Ex parte Perry County Bd. of Educ., 278 Ala. 646, 651, 180 So.2d 246, 250 (1965). ‘In such instances, the act of the usurping court is wholly void, and will not support an appeal.’ Id.”

Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232-33 (Ala.2004).

Discussion

In her petition, Scannelly contends that she had “a clear legal right” to a Rule 41(a) dismissal because, she says, when she filed her notice of dismissal Toxey had not yet filed either an answer or a summary-judgment motion in response to her complaint. She further argues that once she filed her Rule 41(a)(1) notice of dismissal, that notice — and the dismissal— became effective immediately (even without the Bessemer Division’s subsequent dismissal order) and prevented the Bessemer Division’s attempt to assert jurisdiction over her case. More specifically, Scannelly contends that, because in transferring her case to the Bessemer Division the Birmingham Division made clear in its order that it did not consider matters outside the pleadings, Toxey’s Rule 12(b) motion was not converted to a motion for a summary judgment and therefore no answer or motion for a summary judgment had been filed before she filed her Rule 41(a)(1) notice of dismissal.

In support of her petition, Scannelly relies primarily on this Court’s decision in Ex parte Sealy, supra. Among other issues, Sealy similarly involved a petitioner’s contention that, because the defendant had filed neither an answer nor a motion seeking a summary judgment before the petitioner filed its Rule 41(a)(1) notice of dismissal, any action taken by the trial court subsequent to the filing of the petitioner’s notice of dismissal was void. This Court agreed with the petitioner’s argument and granted the requested writs of mandamus and prohibition. In doing so, we stated the following regarding the application of Rule 41:

“Rule 41(a)(1) ..., Ala. R. Civ. P., provides, in pertinent part:
‘“(a) Voluntary Dismissal: Effect Thereof.
“‘(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of this state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.... Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice ....
“(Emphasis added.) ‘The committee comments to Rule 41 state that this rule is substantially the same as the federal rule, and we normally consider federal cases interpreting the federal rules of procedure as persuasive authority.’ Hammond v. Brooks, 516 So.2d 614, 616 (Ala.1987).
“It is well settled that ‘[dismissal on motion under [subdivision (2) of Rule 41(a) ] is within the sound discretion of the court.’ Bevill v. Owen, 364 So.2d 1201, 1202 (Ala.1979); see also MetFuel, Inc. v. Louisiana Well Serv. Co., 628 So.2d 601 (Ala.1993). By contrast, review of a dismissal pursuant to subdivision (1) is de novo. See Marex Titanic, Inc. v. Wrecked & Abandoned Vessel, 2 F.3d 544, 545 (4th Cir.1993); Matthews v. Gaither, 902 F.2d 877, 879 (11th Cir.1990). This is so, because ‘Rule 41(a)(1) affords the plaintiff an unqualified right to dismiss’ its action before the filing of an answer or a summary-judgment motion. Clement v. Merchants Nat’l Bank of Mobile, 493 So.2d 1350, 1353 (Ala.1986) (emphasis added); see also Marex Titanic, Inc., 2 F.3d at 546. Conversely, Rule 41(a)(1) affords the trial court no discretion. See Williams v. Ezell, 531 F.2d 1261, 1264 (5th Cir.1976).
“The effect of a notice of dismissal pursuant to Rule 41(a)(1) was succinctly explained in Reid v. Tingle, 716 So.2d 1190, 1193 (Ala.Civ.App.1997). There, the Court of Civil Appeals said:
“ ‘A voluntary dismissal under Ala. R. Civ. P. 41 terminates the action when the notice of the plaintiffs intent to dismiss is filed with the clerk. See ... Hammond v. Brooks, 516 So.2d 614 (Ala.1987). The committee comments to Rule 41, Ala. R. Civ. P., note that the rule is “substantially the same as the corresponding federal rule.” See Ala. R. Civ. P. 41, Committee Comments on 1973 Adoption. In interpreting F.R. Civ. P. 41(a)(1), the Fifth Circuit stated:
“ ‘ “Rule 41(a)(1) is the shortest and surest route to abort a complaint when it is applicable. So long as plaintiff has not been served with his adversary’s answer or motion for summary judgment he need do no more than file a notice of dismissal with the Clerk. That document itself closes the file. There is nothing the defendant can do to fan the ashes of that action into life and the couri has no role to play. This is a matter of right running to the plaintiff and may not be extinguished or circumscribed by adversary or court. There is not even a 'perfunctory order of court closing the file. Its alpha and omega was the doing of the plaintiff alone.”
‘American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir.1963).’
716 So.2d at 1193 (second emphasis added).
“Although cases involving a Rule 41(a)(1) dismissal ‘are not perfectly analogous to cases in which the ... court lacks subject matter jurisdiction, both contexts present the question of the court’s continuing power over litigants who do not, or no longer, have a justicia-ble case before the court.’ Chemiakin v. Yefimov, 932 F.2d 124, 128 (2d Cir.1991). Thus, it is sometimes stated that a Rule 41(a)(1) dismissal deprives the trial court of ‘jurisdiction’ over the ‘dismissed claims.’ Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1049 (9th Cir.2001); see Safeguard Business Sys., Inc. v. Hoeffel, 907 F.2d 861, 864 (8th Cir.1990); see also Gambale v. Deutsche Bank AG, 377 F.3d 133, 139 (2d Cir.2004); Netwig v. Georgia Pacific Corp., 375 F.3d 1009, 1011 (10th Cir.2004); Meinecke v. H & R Block of Houston, 66 F.3d 77, 82 (5th Cir.1995); Williams v. Ezell, 531 F.2d 1261, 1264 (5th Cir.1976) (‘The court had no power or discretion to deny plaintiffs’ right to dismiss or to attach any condition or burden to that right. That was the end of the case and the attempt to deny relief on the merits and dismiss with prejudice was void.’).
“Similarly stated, ‘[t]he effect of a voluntary dismissal without prejudice is to render the proceedings a nullity and leave the parties as if the action had never been brought.’ In re Piper Aircraft Distrib. Sys. Antitrust Litig., 551 F.2d 213, 219 (8th Cir.1977). Moreover,
‘ “[i]t carries down with it previous proceedings and orders in the action, and all pleadings, both of plaintiff and defendant, and all issues, with respect to plaintiffs claim.” ’ Id. (quoting 27 C.J.S. Dismissal and Nonsuit § 39 (1959))....”

904 So.2d at 1234-36. It is clear, as Scan-nelly argues, that in the absence of service of an answer or a motion for summary judgment by Toxey, she did, in fact, possess an unqualified right to dismiss her complaint without the need for intervention by the Bessemer Division.

Toxey does not dispute this principle. However, he counters that Scannelly lost the unqualified right to voluntarily dismiss her suit without prejudice because, he argues, the motion he filed in the Birmingham Division constituted a Rule 12(b), Ala. R. Civ. P., dismissal motion, which, he says, converted to a summary-judgment motion “when matters outside the pleadings were presented therewith.” In support of this claim, Toxey points to Phillips v. AmSouth Bank, 833 So.2d 29 (Ala.2002), in which this Court held that, “unless the trial court expressly declines to consider the extraneous material [accompanying a motion to dismiss], its conclusions may be construed to include the extraneous material.” 833 So.2d at 31 (citing Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 763 n. 1 (Ala.2002) (trial court’s express refusal to consider extraneous material constituted an exclusion of that material)). Thus, the determinative question before this Court is whether Toxey’s initial motion to dismiss in the Birmingham Division constituted a motion for a summary judgment.

We answer this question affirmatively, although not for the reasons argued by the parties. Because we conclude that, even in the absence of a conversion, Toxey’s initial filing in the Birmingham Division actually included, in part, a motion for a summary judgment, we hold that Scannelly has no clear legal right to the requested relief.

It is apparent that the portion of Toxey’s motion relating to the affirmative defense of res judicata (paragraphs 6 and 7 of his “Motion to Dismiss”), which portion Toxey insists constitutes a Rule 12(b)(6) challenge, was, instead, a motion for a summary judgment. There is a notable distinction between a motion to dismiss filed pursuant to Rule 12(b)(6) and a motion for a summary judgment:

“The Rule 12(b)(6) motion ... must be distinguished from a motion for summary judgment under Rule 56, which goes to the merits of the claim — indeed, to its very existence — and is designed to test whether there is a genuine issue of material fact. The Rule 12(b)(6) motion ... only tests whether the claim has been adequately stated in the complaint. Thus, ... on a motion under Rule 12(b)(6), the [trial] court’s inquiry essentially is limited to the content of the complaint; a motion for summary judgment, on the other hand, often involves the use of pleadings, depositions, answers to interrogatories, and affidavits.”

5B Charles Alan Wright & Arthur C. Miller, Federal Practice and Procedure § 1356, at 372-75 (3d ed.2004) (footnote omitted). See also Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 791 (Ala.2007) (“ ‘Since the facts necessary to establish an affirmative defense generally must be shown by matters outside the complaint, the defense technically cannot be adjudicated on a motion under Rule 12[, Fed.R.Civ.P.].’ 5 Charles Alan Wright and Arthur C. Miller, Federal Practice and Procedure § 1277 (3d ed.2004).”), and 1 Moore’s Federal Rules Pamphlet § 12.4[5][b], p. 186 (2010) (“When the plaintiffs own factual allegations affirmatively demonstrate that the plaintiff cannot recover, dismissal under Rule 12(b)(6) is appropriate.... Similarly, a dismissal under Rule 12(b)(6) may be based on an affirmative defense when the defense is clear from the face of the pleadings.” (emphasis added)).

Clearly, Toxey’s res judicata argument raised issues that were not apparent from the face of Scannelly’s complaint. This Court has previously indicated that because “a 12(b)(6) motion to dismiss only encompasses the determination of whether the pleading states a claim upon which relief can be granted .... [mjatters outside the pleadings should never be considered in deciding whether to grant a 12(b)(6) motion.” Hales v. First Nat’l Bank of Mobile, 380 So.2d 797, 800 (Ala.1980). See also 1 Moore’s Federal Rules Pamphlet § 12.4[5][d], p. 186 (2010) (“Because the purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the pleader’s claims for relief, the court generally may consider only the pleadings and incorporated exhibits in resolving the motion .... ”), and 1 Champ Lyons, Jr., & Ally W. Howell, Alabama Rules of Civil Procedure Annotated § 12.7, p. 304 (4th ed. 2004) (“[The defense of res judicata is] generally considered appropriately raised by a motion to dismiss only in a context where the defect appears on the face of the complaint.”).

In HealthSouth Corp., supra, this Court examined a defendant’s “motion to dismiss” based on the doctrines of res judica-ta and collateral estoppel. Like Scannelly’s complaint in the present case, the plaintiffs complaint in HealthSouth Corp. contained no reference to other litigation. In concluding that, despite the label assigned the motion by the defendant, the motion actually constituted a motion for a summary judgment, this Court stated:

“Although HealthSouth’s motion addressing its defenses of res judicata and collateral estoppel was actually framed as a ‘motion to dismiss,’ the motion should have been treated as one seeking a summary judgment because the face of the complaint did not reference the prior litigation and HealthSouth properly pleaded res judicata and collateral es-toppel in its answer. The substance of a motion, not what a party calls it, determines the nature of the motion. Ex parte Lewter, 726 So.2d 603 (Ala.1998).”

HealthSouth Corp., 979 So.2d at 792. Therefore, we conclude, as we did in HealthSouth Corp., that, in substance, Toxey’s motion was “one seeking a summary judgment.” Id.

In so holding, we do not imply that res judicata may never be properly raised in a Rule 12(b)(6) motion. See McClendon v. Hollis, 784 So.2d 1041, 1043 (Ala.Civ.App.2000) (“A motion to dismiss based on the doctrine of res judicata is in the nature of a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss for failure to state a claim upon which relief can be granted.” (citing Slepian v. Slepian, 355 So.2d 714, 716 n. 2 (Ala.Civ.App.1977), for the proposition “that a res-judicata defense may be properly asserted in a Rule 12 motion to dismiss for failure to state a claim upon which relief can be granted”)). Indeed, we acknowledge that some affirmative defenses, including expiration of the applicable statute of limitations, may be readily apparent from the face of the complaint. See 1 Lyons & Howell, § 12.7, p. 303 (“The [Rule 12(b)(6) ] motion is available when an affirmative defense which is a bar to relief appears on the face of the complaint. ... The most obvious example lies in a complaint showing on its face that the statute of limitations has run.” (citing McCullough v. Alabama By-Products Corp., 343 So.2d 508, 511 (Ala.1977) (“Where the plaintiff includes allegations that show on the face of the complaint that there is an insuperable bar to relief, dismissal is proper.” (emphasis added)))). However, we merely reiterate, as our appellate courts have previously acknowledged, that, although, “[i]n some instances, res judicata may be properly raised by means of a motion to dismiss ... [it is] more commonly [raised] through a motion for a summary judgment.” Wilger v. State Dep’t of Pensions & Sec., 390 So.2d 656, 657 (Ala.Civ.App.1980).

Here, paragraph 6 of Toxey’s motion to dismiss specifically acknowledges that Scannelly’s complaint does not reveal that an affirmative defense, namely res judica-ta, bars Scannelly’s claims. Further, a determination as to whether Toxey’s res judicata allegations are true is determinable only by reference to documents outside the record. As we stated in HealthSouth Corp., supra, it is “the substance of a motion ... [that] determines the nature of the motion.” 979 So.2d at 792. Here, paragraphs 6 and 7 of Toxey’s motion seek a judgment based on the merits of an affirmative defense that is not apparent from the face of the pleadings, not a judgment based on the failure of the pleadings to state a claim. Thus, despite Toxey’s assertions that his motion was a Rule 12(b)(6) motion to dismiss, a review of the substance of the motion shows that it was, in part, a motion seeking a summary judgment based on the affirmative defense of res judicata. Because at the time Scannelly filed her notice of dismissal pursuant to Rule 41(a)(1), Toxey had moved for a summary judgment, Scannelly was deprived of the unqualified right to voluntarily dismiss her complaint pursuant to Rule 41. In consideration of the foregoing, we conclude that Scannelly has failed to demonstrate a clear legal right to the requested writs. We therefore deny Scannelly’s petition.

PETITION DENIED.

COBB, C.J., and WOODALL, STUART, BOLIN, MURDOCK, MAIN, and WISE, JJ., concur.

      . As discussed in more detail below, Rule 41(a)(1) provides, in pertinent part, that "an action may be dismissed by the plaintiff without order of court ... by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment....”

      . In her initial complaint filed in Jefferson County Scannelly had indicated that one of the parcels of real estate at issue was located in Tuscaloosa County. Scannelly’s Tuscaloosa complaint further alleged both that "Toxey resides in Tuscaloosa County” and that "the actions giving rise to [the] lawsuit occurred in Tuscaloosa County.”


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Brandy Lee THURMAN v. James Ronald THURMAN, Jr.
    2100135.
    Court of Civil Appeals of Alabama.
    June 24, 2011.

      Charles N. Reese of Reese & Reese Attorneys, Daleville, for appellant.
    Robert H. Brogden, Ozark, for appellee.
   BRYAN, Judge.

Brandy Lee Thurman (“the mother”) appeals from a judgment entered by the Dale Circuit Court (“the trial court”) insofar as it denied her petition for relief from a judgment and refused to hold James Ronald Thurman, Jr. (“the father”), in contempt.

Background and Procedural History

The record indicates that the trial court entered a judgment divorcing the parties on September 5, 2008. The divorce judgment incorporated an agreement entered into by the parties in July 2008 regarding, among other things, the division of their marital property and custody of the three children born during the marriage. Pursuant to the agreement, the parties maintained joint legal custody of the children and the mother was awarded primary physical custody of the children, subject to the father’s visitation rights.

On November 7, 2008, the father filed a motion pursuant to Rule 60(b), Ala. R. Civ. P., requesting relief from the custodial provisions of the divorce judgment. The parties subsequently entered into an agreement on November 24, 2008, which was ratified by the trial court on or about December 1, 2008, that awarded the father primary physical custody of the parties’ two oldest children, T.T. and J.T. The mother maintained primary physical custody of the parties’ youngest child, M.T.

On August 24, 2009, the mother filed a petition for a rule nisi and a petition to modify custody. The mother requested, among other things, that the trial court hold the father in contempt for failure to abide by the visitation provisions in the divorce judgment and that the trial court award her the care, custody, and control of all the children. The mother alleged that the father’s November 2008 Rule 60(b) motion had contained false allegations and that the father had coerced the mother into signing the custody-modification agreement that was ratified by the trial court on December 1, 2008. The father subsequently filed an answer and a counterclaim seeking a modification of the December 2008 judgment so that he was awarded sole physical custody of M.T.

On September 25, 2009, the mother filed a motion for immediate return of personal property. The mother alleged that the father had refused to allow her to retrieve all the personal property that she had been awarded pursuant to their divorce judgment. The trial court subsequently entered an order stating the mother should make an effort to resolve the issue before trial but that it would address the issue of the father’s alleged contempt at trial if the issue was not resolved before that time. The father subsequently filed an amended counterclaim alleging that the mother was in contempt of the divorce judgment because she had failed to refinance her vehicle as ordered in the divorce judgment and because she had relocated with M.T., the parties’ youngest child, outside Dothan without his prior written consent, as required by the divorce judgment.

The trial court conducted an ore tenus proceeding on December 21, 2009, and February 17, 2010, and it purported to enter a final judgment on March 5, 2010. The trial court denied the mother’s custody-modification petition, but it granted the father’s counterclaim seeking modification of custody-modification. The trial court also denied the father’s request to hold the mother in contempt and it denied an aspect of the mother’s petition to modify that it construed as a request for relief pursuant to Rule 60(b), Ala. R. Civ. P. However, that judgment did not dispose of the mother’s petitions to hold the father in contempt. On October 18, 2010, the trial court entered an order finding that the father was not in contempt of the divorce judgment. Without filing a postjudgment motion, the mother timely appealed.

Issues

On appeal, the mother contends that the trial court erred by failing to grant her request for relief pursuant to Rule 60(b)(6), Ala. R. Civ. P., and that the trial court erred by failing to use its contempt powers to compel the father to return the personal property that she was awarded in the divorce judgment.

Facts

At the time of trial in December 2009, T.T. was seven years old, J.T. was five years old, and M.T. was three years old.

The mother stated that, at the time the father filed his Rule 60(b) motion in November 2008, she was living with her mother and stepfather and living off of only the $1,029.49 that the father paid her in child support each month. She had started an embroidery business after the parties divorced, but the record indicates that mother earned only $10,000 a year through that business. At the time of the December 2009 hearing, the mother had closed her business. She alleged that the father would not help her pay for day care for the children, and she stated that she had asked the father for additional funds to assist with school supplies and clothing for the children in 2008, but the father had refused.

The mother stated that the father did not pay her child support in November 2008, which affected her ability to obtain legal counsel to defend his November 2008 Rule 60(b) motion. The mother also stated that the father had asked her to refund some of his child-support payment from October 2008 because T.T. and J.T., around mid-September 2008, had begun spending the night at the father’s house on weeknights so that they could catch a bus to school from the father’s house. The mother stated that the parties had entered into this arrangement to save money on gasoline.

The father presented evidence indicating that he had paid child support to the mother in September, October, and November 2008, either on the first of the month or a few days before the first of the month. The father testified that, beginning near the end of July 2008, the children had stayed at his home almost every night but that he had still paid the mother the child-support payments that he was required to make pursuant to the divorce judgment.

According to the mother, after the parties divorced but before she signed the custody-modification agreement in November 2008, the father had threatened to take the children away from her if she did not agree to reunite their family. The mother stated that, on October 31, 2008, the father punched the windows of her vehicle and said vulgar things when he saw that the mother had brought her boyfriend, Kevin, to a visitation exchange. The mother married Kevin in September 2009, and the mother stated that the father had threatened Kevin by telling him that he would ensure that Kevin would not succeed in his career.

Apparently, the father and Kevin were friends and worked together at Fort Ruck-er, an Army base near Dothan, before the parties divorced. The father admitted that he had shouted at Kevin and that he had hit the mother’s vehicle with his hands on that occasion on October 31, 2008, but he stated that he had just been told that the mother and Kevin had had an affair before the parties divorced and that he had asked the mother not to bring Kevin to visitation exchanges.

The mother produced several witnesses to present evidence indicating that some of the allegations made by the father in his November 2008 Rule 60(b) motion were false. However, the father stated that he did not put any allegation in his November 2008 Rule 60(b) motion that was false. The father testified that he and the mother discussed his Rule 60(b) motion after it was filed, and the father alleged that the custody-modification agreement was the mother’s idea. The father stated that he was present with the mother at his attorney’s office when the mother signed the custody-modification agreement, that his attorney went over the agreement in detail with the mother, that his attorney had pointed at him and asked the mother if the father had coerced her into reaching an agreement, and that the mother had stated that she had not been coerced. According to the father, his attorney explained to the mother the consequences of signing the custody-modification agreement and the mother stated that she understood the consequences of signing the agreement. The father stated that the mother never complained about not having an attorney.

The mother stated that, when she signed the custody-modification agreement in November 2008, she understood the legal effect of her signature, and she admitted that the father’s attorney had asked her if anyone had coerced her into signing the custody-modification agreement. However, she denied stating that the father had not coerced her, and she stated that she had told the father’s attorney that she had no other choice but to sign the custody-modification agreement. The mother also admitted that she understood that by signing the custody-modification agreement she was giving up the right to challenge the allegedly false allegations made in the father’s November 2008 Rule 60(b) motion.

The mother stated that she had been awarded a trampoline, a swing set, and the children’s televisions, beds, clothing, and toys in the divorce judgment but that the father had not allowed the mother to retrieve those items from the former marital residence, where the father lived. The father presented documentary evidence of a letter sent via facsimile transmission from his attorney to the mother’s attorney on September 11, 2009, approximately three months before the first ore tenus hearing in this matter, indicating that the father had tried to return the belongings the mother requested on two prior occasions. The letter further stated that the mother could come to the father’s home to retrieve the items on September 19 or 26, 2009. The mother testified that her attorney’s secretary failed to inform her that she needed to confirm the scheduled pickup time with the father, and she admitted that it was not the father’s fault that she did not get her property back. However, she also alleged that the letter only referenced her daughter’s property and not all the property awarded to her in the divorce judgment.

The father stated that he had attempted to set up a time for the mother to retrieve the children’s belongings but that the mother had failed to retrieve them. The father also stated that, after the parties had signed the custody-modification agreement, the mother stated that she did not want the trampoline or the swing set because the father had custody of the parties’ older children.

Discussion

Initially, we note that the mother does not contend on appeal that the trial court should have granted her relief from the December 2008 judgment on the grounds that it was obtained by the father’s allegedly fraudulent allegations. See Rule 60(b)(3), Ala. R. Civ. P. The mother argues only that the trial court erred by denying her request for relief from the December 2008 custody-modification judgment under Rule 60(b)(6). Rule 60(b) provides, in pertinent part:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.”

Our supreme court has held that “ ‘ “[r]elief under Rule 60(b)(6) is reserved for extraordinary circumstances, and is available only in cases of extreme hardship or injustice.” ’ ” Ex parte Hicks, 67 So.3d 877, 880 (Ala.2011) (quoting Chambers County Comm’rs v. Walker, 459 So.2d 861, 866 (Ala.1984), quoting in turn Douglass v. Capital City Church of Nazarene, 443 So.2d 917, 920 (Ala.1983)). Furthermore,

“[t]he decision to grant or deny a Rule 60(b)(6) motion is within the discretion of the trial judge. Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 283 (Ala.1998). The only issue we consider on an appeal from the denial of a Rule 60(b) motion is whether, by denying the motion, the trial court abused its discretion. Id. Therefore, an appeal from the denial of a Rule 60(b)(6) motion ‘does not present for review the correctness of the judgment that the movant seeks to set aside, but presents for review only the correctness of the order from which the appeal is taken.’ Satterfield v. Winston Indus., Inc., 553 So.2d 61, 63 (Ala.1989).
“Rule 60(b)(6) is an extreme remedy and relief under Rule 60(b)(6) will be granted only ‘in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief.’ Nowlin v. Druid City Hosp. Bd., 475 So.2d 469, 471 (Ala.1985). The purpose of Rule 60(b)(6) is not to relieve a party from a free and deliberate choice the party has previously made. City of Daphne v. Coffey, 410 So.2d 8, 10 (Ala.1981).”

Wood v. Wade, 853 So.2d 909, 912-13 (Ala.2002).

“In addition, under Rule 60(b)(6), relief is granted only in those extraordinary and compelling circumstances when the party can show the court sufficient equitable grounds to entitle him to relief, but relief should not be granted to a party who has failed to do everything reasonably within his power to achieve a favorable result before the judgment becomes final; otherwise, a motion for such relief from a final judgment would likely become a mere substitute for appeal and would subvert the principle of finality of judgments.”

Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993).

Also, “where there are disputed issues of fact to be resolved and the trial court has received ore tenus evidence, the ore tenus rule is applicable to our review of a ruling on a Rule 60(b)(6) motion.” Ex parte A & B Transp., Inc., 8 So.3d 924, 932 (Ala.2007) (citing Shipe v. Shipe, 477 So.2d 430, 432 (Ala.Civ.App.1985)). ‘“[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005) (quoting Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). Furthermore, when a judgment fails to include specific findings of fact, “appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).

After a review of the record, and considering the mother’s arguments on appeal, we cannot conclude that the trial court exceeded its discretion in denying the mother’s Rule 60(b)(6) motion for relief from the December 2008 custody-modification judgment on the basis that she was coerced into signing the underlying custody-modification agreement. Although the mother presented evidence indicating that she did not have the financial means to obtain an attorney to defend the father’s Rule 60(b) motion and that the father had threatened her and Kevin in the period leading up to the filing of his November 2008 Rule 60(b) motion, the trial court could have concluded that the mother did not present evidence of extraordinary or compelling circumstances sufficient to grant her Rule 60(b)(6) motion for relief from the December 2008 custody-modification judgment. The father testified that the mother had freely signed the custody-modification agreement and that she had specifically told his attorney that the father had not coerced her into signing the agreement. Accordingly, we affirm that aspect of the trial court’s judgment denying the mother’s Rule 60(b)(6) motion for relief from the December 2008 custody-modification judgment.

The mother also argues that the trial court erred by failing to use its contempt power to compel the father to return the personal property that was awarded to the mother in the parties’ divorce judgment.

“ ‘Civil contempt’ is defined as a ‘willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.’ Rule 70A(a)(2)(D), Ala. R. Civ. P. The determination of whether a party is in contempt is within the sound discretion of the trial court, and that determination will not be reversed absent a showing that the court exceeded the limits of its discretion. Stack v. Stack, 646 So.2d 51 (Ala.Civ.App.1994).
“... ‘... In reviewing a case alleging contempt, our review of the record is limited solely to determining if there is support for the trial court’s order.’ Grant v. Grant, 849 So.2d 186, 188 (Ala.Civ.App.2002).”

Routzong v. Baker, 20 So.3d 802, 810 (Ala.Civ.App.2009).

The trial court heard evidence indicating that the father had attempted, on more than one occasion, to arrange for the mother to come to his home to retrieve her personal property. Because the record contains evidence supporting the trial court’s determination that the father had not willfully failed or refused to comply with the divorce judgment, we hold that the trial court did not exceed its discretion by concluding that the father was not in contempt.

The mother further contends that the trial court should have entered an order compelling the father to allow her to retrieve her personal property and that, by failing to compel the father to allow her to retrieve the personal property, the trial court impermissibly modified the property-division provisions of the divorce judgment. We disagree that the trial court’s judgment has modified any part of the property-division provisions of the divorce judgment. See Rhyne v. Rhyne, 564 So.2d 966, 967 (Ala.Civ.App.1989) (holding that the apparent denial of the husband’s request for an order compelling the wife to deliver to him the personal property he had been awarded in their divorce judgment did not constitute a modification of the original divorce judgment). The record indicates that several attempts were made to allow the mother to retrieve the personal property that she had been awarded pursuant to the divorce judgment but that, nevertheless, the mother apparently never obtained physical possession of each piece of property that she was awarded in the divorce judgment. Accordingly, we will not hold that the trial court committed error for failing to enter an order compelling the father to make that property available to the mother when the evidence indicated that he had attempted to do so. However, such a conclusion does not alter the fact that the mother is entitled to receive the property that she was awarded in the parties’ divorce judgment. See, generally, Dunn v. Dunn, 12 So.3d 704, 709 (Ala.Civ.App.2008) (“A trial court loses jurisdiction to modify a property division in a divorce judgment 30 days after the entry of the judgment.”).

Conclusion

The judgment of the trial court is due to be affirmed. The father’s request for an attorney’s fee on appeal is granted in the amount of $1,500.

AFFIRMED.

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

      . The trial court treated the mother’s August 2009 petition to modify, insofar as it asserted that the father’s Rule 60(b) motion had contained false allegations and that the father had coerced her into signing the custody-modification agreement, as a Rule 60(b) motion because it alleged grounds that could have fallen within the parameters of a Rule 60(b) motion for relief from a judgment. See Jones v. Regions Bank, 25 So.3d 427, 441 n. 9 (Ala.2009) (citing Ex parte Lang, 500 So.2d 3 (Ala.1986); and Campbell v. Campbell, 718 So.2d 76 (Ala.Civ.App.1998)) ("It is well settled that the substance of a motion, not its nomenclature, is controlling; the relief sought in a motion determines how the motion is treated.”).

      . The mother appealed from the March 2010 order, but, on September 27, 2010, this court dismissed the mother's appeal based on the parties’ joint motion to dismiss the appeal because it was taken from a nonfinal judgment. See Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007) ("[Djuring a postdi-vorce proceeding, [if] the trial court fails to rule on every pending contempt motion, its failure to do so does affect the finality of the divorce judgment.”).

      . The mother had custody of her daughter, who is not the biological or adopted child of the father.

      . Because the mother is relying on Rule 60(b)(6) for relief from the December 2008 judgment, the mother’s August 2009 Rule 60(b) motion is not subject to the four-month time limitation set forth in Rule 60(b). For purposes of this appeal, we will assume, without deciding, that the mother’s Rule 60(b) motion was filed within a reasonable time.


author: THOMPSON, Presiding Judge. THOMAS, Judge,

text:
    Ex parte T.J. (In re R.W. v. T.J. and C.W. and T.J. v. R.W. and C.W.).
    2100277.
    Court of Civil Appeals of Alabama.
    June 24, 2011.

      Juliana Taylor, Montgomery, for petitioner.
    Fernando Morgan of Morgan Law Firm, Montgomery, for respondent C.W.
    Karen H. Jackson, Prattville, guardian ad litem, for respondent A.W. and A.W., siblings of S.W.
   THOMPSON, Presiding Judge.

T.J. petitions this court for a writ of mandamus directing the Montgomery Juvenile Court (“the juvenile court”) to recognize and adjudicate him as the presumed father of S.W. (“the child”) and to vacate its order requiring genetic testing to establish the child’s paternity.

According to the briefs and materials of the parties and the brief of the guardian ad litem of the child’s siblings filed in this court in support of and in opposition to the petition for a writ of mandamus, on September 3, 2009, R.W., the child’s maternal grandmother (“the maternal grandmother”), filed a petition in the juvenile court against T.J. and C.W., the child’s mother (“the mother”), seeking custody of three of her grandchildren, including the child. The maternal grandmother’s petition is not included in the materials submitted with this petition for the writ of mandamus. However, according to the briefs submitted to this court in support of and in opposition to T.J.’s petition for a writ of mandamus, the maternal grandmother referred to T.J. as the child’s father in her custody petition.

On October 30, 2009, T.J. filed a petition in the juvenile court seeking custody of the child. T.J.’s custody petition is not included in the materials before this court. However, according to the parties’ briefs to this court relating to T.J.’s petition for a writ of mandamus, in T.J.’s custody petition, he claims that he is the child’s father and that the child has lived with him since the child’s birth.

On November 13, 2009, the mother filed a petition for custody of the child. According to the briefs submitted to this court, the mother named J.H. as the father of the child. On January 22, 2010, the mother filed a motion requesting genetic testing of T.J. and J.H. to establish paternity of the child. T.J. apparently objected to the mother’s motion on the ground that he had “receivefd] the child into his home and openly [held] out the child as his natural child or otherwise openly [held] out the child as his natural child” so as to give rise to a presumption of paternity pursuant to § 26-17-204(a)(5), Ala.Code 1975. None of the documents mentioned are contained in the materials submitted to this court.

On December 3, 2010, the juvenile court held a six-hour hearing on the issue of T.J.’s paternity of the child. On December 17, 2010, the juvenile court entered an order granting the mother’s motion for genetic testing. On December 29, 2010, T.J. filed his petition for a writ of mandamus directing the juvenile court to recognize and adjudicate him as the presumed father of the child and to vacate the order requiring genetic testing. This court called for an answer and briefs from the other parties, and the parties have complied with that request.

In their briefs, each of the parties argues that the facts presented at the December 3, 2010, hearing support his or her respective position regarding whether T.J. is the presumptive father of the child. It is apparent from the parties’ briefs that material facts are in dispute. For example, T.J. asserts that the child has always lived with him. In her brief, the mother claims that there have been times when the child has lived with her and not with T.J. T.J. asserts that paperwork the maternal grandmother completed for the child at the child’s Head Start school indicated that he was the child’s father. The brief of the guardian ad litem for the child’s siblings, who argues against the issuance of the writ, states that the Head Start paperwork indicates that T.J. is the child’s “godfather” and that it identified J.H. as the child’s father. The guardian ad litem also stated that the mother’s address, and not T.J.’s, was listed as the child’s address on the Head Start paperwork. The parties also dispute the substance of the testimony of two of T.J.’s friends. In his brief, T.J. states that the friends said that T.J. had held the child out as his natural child. However, in the mother’s brief, she states that one of those friends testified that he had heard that T.J. was not the child’s biological father and that he had wondered why the child’s last name was different than T.J.’s and the mother’s last names.

In addition to the parties’ briefs presented to this court, the juvenile court submitted a letter brief stating that clear and convincing evidence was presented at the hearing that rebutted any presumption of paternity that T.J. might have had. As the juvenile court made clear in both its order and its letter brief to this court, the evidence is undisputed that T.J. was incarcerated at the time of the child’s conception. According to the juvenile court, evidence indicated that, by the time T.J. was released from incarceration, the mother was already five months pregnant with the child. The mother and T.J. have never married, and the mother has publicly identified another man as the child’s father.

In its order, the juvenile court recognized that T.J. and the child had developed a parent-child type of relationship and that T.J. provided financial and emotional support to the child. However, the juvenile court also found that it was “unlikely” that T.J. believed he was the natural father of the child. After weighing the evidence, the juvenile court concluded that T.J. cannot be the child’s presumed father. In the order, the juvenile court stated that “there was no presumed father in this matter” and that, therefore, an order for genetic testing was appropriate. This conclusion is not inconsistent with the finding that T.J. had developed a loving and supportive relationship with the child.

As grounds for his petition for a writ of mandamus, T.J. contends that the juvenile court erred in failing to adjudicate him as the presumed father. He argues that, because he is the presumed father, no one can legally challenge his status as the child’s father. Therefore, T.J. says, the juvenile court improperly ordered genetic testing to establish paternity of the child.

A writ of mandamus is an extraordinary remedy available only when the petitioner demonstrates: “ ‘(1) a clear legal right 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 (4) the properly invoked jurisdiction of the court.’” Ex parte Nall, 879 So.2d 541, 543 (Ala.2003) (quoting Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001)). A petition for a writ of mandamus is the proper vehicle for seeking review of an interlocutory order. Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala.2008). However, “[a] writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal.” Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998) (citing Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991)).

TJ.’s argument appears to be that no one can challenge his assertion that, pursuant to § 26-17-204(a)(5), Ala.Code 1975, he is the child’s father. The Alabama Uniform Parentage Act (“the AUPA”), codified at § 26-17-101 et seq., Ala.Code 1975, sets forth the statutory criteria for determining the paternity of a child. In pertinent part, § 26-17-204(a)(5) states:

“A man is presumed to be the father of a child if:
“(5) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child or otherwise openly holds out the child as his natural child and establishes a significant parental relationship with the child by providing emotional and financial support for the child.”

Section 27-17-204(b) provides:

“A presumption of paternity established under this section may be rebutted only by an adjudication under Article 6 [§ 26-17-601 through § 26-17-638], In the event two or more conflicting presumptions arise, that which is founded upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control. The presumption of paternity is rebutted by a court decree establishing paternity of the child by another man.”

(Emphasis added.)

The purpose of the December 3, 2010, hearing was to determine whether T.J. was, in fact, the presumed father of the child. In ordering genetic testing to be conducted to determine paternity, the juvenile court stated that, based upon the evidence presented at that hearing, it was “unable to find that [T.J. was] the presumed father.”

As previously mentioned, § 26-17-204(a)(5) provides that a man is the presumed father of the child when “he receives the child into his home and openly holds out the child as his natural child or otherwise openly holds out the child as his natural child and establishes a significant parental relationship with the child by providing emotional and financial support for the child.” (Emphasis added.) It is not enough for a man to develop a loving, nurturing, parent-child type of relationship with a child to be the legally presumed father of a child.

In this case, because we do not have a record of the proceedings before the juvenile court, we simply do not have before us the means to know whether T.J. presented sufficient evidence from which to determine that he held the child out to the public as his natural child as described in § 26-17-204(a)(5); we also do not know to what extent such evidence was disputed. However, based on the materials submitted to us in support of and in opposition to the petition for a writ of mandamus, we do know that undisputed evidence demonstrates that the child did not share T.J.’s last name and that the child’s mother has claimed that a man other than T.J. is the child’s natural father.

It is axiomatic that such conflicts in the evidence are for the trial court to resolve. Baker v. Townsend, 484 So.2d 1097, 1098 (Ala.Civ.App.1986). Without a transcript of the six-hour hearing, we cannot conclude that there was sufficient evidence from which to hold that T.J. held himself out to the public as the child’s natural father. If we were to grant the petition and issue the writ in this case, directing the juvenile court to recognize and adjudicate T.J. as the child’s presumed father, we would be usurping the juvenile court’s authority, without the benefit of a transcript of the hearing.

Because the evidence as set forth in the materials provided to this court tends to show that the mother was five months pregnant with the child before T.J. was released from incarceration and she began dating him, it must be recognized that T.J. cannot be the child’s biological father. Therefore, we do not believe that “undue injury” will arise from the juvenile court’s order granting genetic testing in an effort to determine paternity of the child. Because it has never been established that T.J. is the presumed father, he has failed to demonstrate that he has a clear legal right to a writ directing the juvenile court to vacate the order granting genetic testing to establish paternity. Thus, the proper method for T.J. to contest the juvenile court’s ruling that he is not the child’s presumed father is by an appeal.

For the reasons set forth above, T.J.’s petition for a writ of mandamus is due to be denied.

PETITION DENIED.

PITTMAN and MOORE, JJ., concur.

THOMAS, J., dissents, with writing, which BRYAN, J., joins.

THOMAS, Judge,

dissenting.

I must respectfully dissent. I disagree that the juvenile court, despite stating in its order that it was “unable to find that [T.J. was] the presumed father,” actually failed to conclude that T.J. was the presumed father under Ala.Code 1975 § 26-17-204(a)(5), a part of the Alabama Uniform Parentage Act (“the Act”), Ala.Code 1975 § 26-17-101 et seq. In order to make clear the basis upon which I believe the writ should be granted, I will quote a large portion of the order from which T.J. seeks relief.

“It is clear from the testimony of the witnesses and the admissions by the mother that [T.J.] has been in a generous and loving role towards the minor child, and that he has provided for her emotionally and financially since her birth. Furthermore, it is clear from the testimony that the mother has allowed the relationship to grow and that the child calls [T.J.] ‘daddy.’ The evidence clearly shows that [T.J.], despite knowing that the child is not or may not be his genetic child, affirmatively accepted a caregiver role as the child’s father and that the child, the mother, and the maternal grandmother have relied on that acceptance.
“At the hearing, [T.J.] sought to have this Court’s declaration of [T.J.’s] parentage and that he is the presumed father of [the child] pursuant to § 26-17-204(a)(5) Code of Alabama (1975), which states in pertinent part that ... ‘A man is presumed to be the father of a child if: while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child or otherwise openly holds out the child as his natural child and establishes a significant parental relationship with the child by providing emotional and financial support for the child....’
“It is undisputed that [T.J.] has established a parent-child relationship with [the child]. Notwithstanding the same, it is unlikely that he believed this child to be his ‘natural’ child when he was incarcerated at the likely time of conception. [T.J.] does not dispute that he was incarcerated from July through November in 2004 and further that he did not have a physical relationship with the mother at the likely time of conception. This court cannot ignore this fact. Further, the mother testified that she was already 5 months pregnant when [T.J.] was released from incarceration in November 2004. This court also considered the HeadStart application, which pre-dates this proceeding, wherein the mother identified another man as the father of [the child] and identified [T.J.] as the Godfather.
“Based on the foregoing, this court is unable to find that [T.J.] is the presumed father. Accordingly, the Parties may proceed with genetic testing.”

As a reading of the juvenile court’s factual findings makes clear, the juvenile court did determine that T.J. had, in fact, established facts amounting to a presumption of his paternity under § 26-17-204(a)(5). That section reads:

“(a) A man is presumed to be the father of a child if:
“(5) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child or otherwise openly holds out the child as his natural child and establishes a significant parental relationship with the child by providing emotional and financial support for the child.”

The juvenile court found, as a matter of fact, that T.J., who knew or at least suspected that the child was not his biological offspring, (1) “has been in a generous and loving role towards the minor child,” (2) “has provided for her emotionally and financially since her birth,” and (3) has “affirmatively accepted a caregiver role as the child’s father.” In addition, the juvenile court found that “the mother has allowed the relationship to grow and that the child calls [T.J.] ‘daddy’ ” and that T.J., the mother, and the maternal grandmother had relied on T.J.’s assumption of the role of father in the child’s life. These findings clearly and without question establish that T.J. has “otherwise openly [held] out the child as his natural child and [has] established] a significant parental relationship with the child by providing emotional and financial support for the child.” § 26-17-204(a)(5). Moreover, the juvenile court stated that “[i]t is undisputed that [T.J.] has established a parent-child relationship with [the child].”

The juvenile court then goes further, however, to determine that T.J. could not be the biological father of the child because he was incarcerated at the time of the child’s conception. In support of the decision to reject T.J.’s presumed fatherhood based almost solely on this fact, the juvenile court, in its response to T.J.’s mandamus petition, first states that it determined that “clear and convincing evidence was presented which rebutted any presumption of paternity in [T.J.].” Secondly, the juvenile court states that it “found that it would be intellectually dishonest to presume [T.J.] to be the father of the child, considering the evidence presented,” and explicitly declares its reliance on the Official Comment to Section 607 of the Uniform Parentage Act, which states that “[i]t is inappropriate for the law to assume a presumption known by all those concerned to be untrue.” § 26-17-607, Uniform Comment.

Section 607 of the Uniform Act reads:

“(a) Except as otherwise provided in subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father must be commenced not later than two years after the birth of the child.
“(b) A proceeding seeking to disprove the father-child relationship between a child and the child’s presumed father may be maintained at any time if the court determines that:
“(1) the presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception; and
“(2) the presumed father never openly held out the child as his own.”

Even assuming that, under the Uniform Parentage Act, the juvenile court’s decision to permit the mother to rebut T.J.’s presumption was proper, it is of no consequence to the decision in the present case.

Alabama has not adopted Section 607 of the Uniform Parentage Act. The Alabama Comment to § 26-17-607 make this more than abundantly clear: “This section is substantially different from Section 607 of the Uniform Parentage Act (2002).” The comment goes further to explain that Alabama “follows Ex parte Presse, 554 So.2d 406 (Ala.l989)[,] and its progeny that favor maintaining the integrity of the family unit and the father-child relationship that was developed therein. Once the presumed father ceases to persist in his parentage, then an action can be brought.” Section 26-17-607(a) reads:

“(a) Except as otherwise provided in subsection (b), a presumed father may bring an action to disprove paternity at any time. If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.”

(Emphasis added.)

I note that the juvenile court, in its order, focuses on the fact that “it is unlikely that [the father] believed this child to be his ‘natural’ child when he was incarcerated at the likely time of conception.” If the juvenile court believed that T.J.’s knowledge of his lack of biological parentage somehow prevented him from establishing the presumption under § 26-17-204(a)(5), I must disagree. I do not believe that subsection (a)(5) requires that, in order to establish the presumption under that subsection, a man must believe that the child is his “natural” child, i.e., that the child is his biological offspring.

I understand that the use of the word “as” in the phrase “openly holds out the child as his natural child” is perhaps not entirely clear in meaning. However, I read “as” in this context as meaning “in the way or manner that,” “in accordance with what or the way in which,” or “in the capacity, character, condition, or role of.” Merriam-Webster’s Collegiate Dictionary 71 (11th ed.2003). Likewise, to “hold out” is defined as “to represent to be,” id. at 592, while “represent” is defined as “to describe as having a specified character or quality.” Id. at 1057. Thus, subsection (a)(5) establishes a presumption of paternity in a man who openly treats a child in the same manner he would treat his biological child, who openly treats a child in accordance with the way that a father would treat his biological child, or who openly treats the child as if the child had assumed the role of his biological child “and establishes a significant parental relationship with the child by providing emotional and financial support for the child.” § 26-17-204(a)(5). Read in this way, § 26-17-204(a)(5) serves to promote a significant parental relationship over a mere biological connection. Such a reading finds generous support in comments to the Act.

The Uniform Comment to § 26-17-204 states that “courts may use the estoppel principles in § 608 in appropriate circumstances to deny requests for genetic testing in the interests of preserving a child’s ties to the presumed or acknowledged father who openly held himself out as the child’s father regardless of whether he is in fact the genetic father.” Thus, it is clear that a presumption under § 26-17-204(a)(5) arising from a man’s decision to hold the child out as his own offspring is not automatically trumped by proof that he could not possibly be the “genetic father.” An examination of the Uniform Comment to Ala.Code 1975, § 26-17-608, further bolsters the conclusion that the presumption under § 26-17-204(a)(5) does not require the man seeking to establish the presumption to actually believe that he is, indeed, the biological or genetic father of the child. That comment reads:

“This section incorporates the doctrine of paternity by estoppel, which extends equally to a child with a presumed father or an acknowledged father. In appropriate circumstances, the court may deny genetic testing and find the presumed or acknowledged father to be the father of the child. The most common situation in which estoppel should be applied arises when a man knows that a child is not, or may not be, his genetic child, but the man has affirmatively accepted his role as [the] child’s father and both the mother and the child have relied on that acceptance. Similarly, the man may have relied on the mother’s acceptance of him as the child’s father and the mother is then estopped to deny the man’s presumed parentage.”

(Emphasis added.) Because my reading of § 26-17-204(a)(5) comports with what I believe to be a primary purpose of the Act — maintaining significant parent-child relationships despite the lack of a genetic link — I cannot agree with the juvenile court’s apparent belief that T.J.’s knowledge of his likely lack of a biological connection with the child somehow prevents him from establishing the presumption to which he is entitled.

Because the juvenile court found that the evidence at the hearing established that T.J. had developed and maintained a father-child relationship with the child and that he had emotionally and financially supported the child since her birth as if she were his biological child despite his knowledge that she likely was not, I conclude that the juvenile court determined that T.J. met the requirements of § 26-17-204(a)(5) and, thus, was a presumed father under the Act. At that point, the juvenile court was prohibited by § 26-17-607(a) from allowing the mother to rebut T.J.’s presumption of paternity. Instead, the juvenile court was required to dismiss the mother’s action to establish the child’s paternity insofar as it sought to establish paternity in J.H. and insofar as it sought genetic testing to do so. I would, therefore, grant the petition and issue the writ of mandamus requested by T.J.

BRYAN, J., concurs.

      . We note that when an appellate court "considers a petition for a writ of mandamus, the only materials before it are the petition and the answer and any attachments to those documents. There is no traditional 'record' submitted" as there is in an appeal. Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222, 1228 (Ala.2009). Rule 21(a)(1)(B) and (E), Ala. R.App. P., provides that the petitioner is to provide this court with a "statement of the facts necessary to an understanding of the issues presented by the petition,” as well as “[c]opies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition.” The respondent is also given an "opportunity to supplement the ‘record’ by attaching exhibits of its own...." Ex parte Fontaine Trailer Co., 854 So.2d 71, 74 (Ala.2003); see also Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 232 n. 2 (Ala.2004).

      . The main opinion relies on the juvenile court's statement that it was "unable to find that [T.J. was] the presumed father” under the Act. However, the juvenile court’s determination that TJ. was not the presumed father was not a factual finding; instead, the juvenile court made a legal conclusion that T.J. was not entitled to the presumption of paternity in § 26-17-204(a)(5). I believe that the juvenile court's numerous factual findings, which were made after the juvenile court considered the testimony and resolved conflicts in the evidence and which are set out supra, form the basis for only one possible legal conclusion — that TJ. is the child's presumed father; thus, I am not reweighing evidence or usurping the role of the juvenile court. I am firmly convinced, in large part because of the language used in the juvenile court’s order and by the juvenile court in its response to the mandamus petition, that the juvenile court has committed error in its application of the law.

      . I question whether under the Uniform Parentage Act the mother would have been permitted to disprove T.J.'s presumed fatherhood because that act clearly requires not only evidence of the unlikelihood that the presumed father was involved in the conception of the child but also proof that "the presumed father never openly held the child out as his own,” which would not comport with the factual findings made by the juvenile court in this case.


author: MOORE, Judge.

text:
    MONTGOMERY COUNTY DEPARTMENT OF HUMAN RESOURCES v. Mickey McDERMOTT, as guardian ad litem for M.J.M., a minor.
    2100290.
    Court of Civil Appeals of Alabama.
    June 24, 2011.

      Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellant.
    Mickey J.G. McDermott, Montgomery, guardian ad litem for M.J.M.
   MOORE, Judge.

The Montgomery County Department of Human Resources (“DHR”) appeals from a judgment of the Montgomery Juvenile Court (“the juvenile court”) awarding custody of M.J.M. (“the child”) to DHR. We reverse.

On August 6, 2010, two delinquency petitions were filed in the juvenile court, alleging that the child was being charged with counts of burglary and theft of property. Also on August 6, 2010, upon a recommendation made by the child’s juvenile probation officer that the child be held in detention, the juvenile court entered a detention order requiring the child to remain in detention because “[rjelease of the child would present a clear and substantial threat of a serious nature to the person or property of another.”

On November 23, 2010, the juvenile court entered a judgment finding the child dependent and awarding legal custody of the child to DHR. DHR filed a motion to alter, amend, or vacate the juvenile court’s judgment on December 7, 2010, asserting, among other things, that the juvenile court lacked jurisdiction to award custody of the child to DHR because no dependency petition had been filed and because the procedure outlined in § 12-15-215(a)(3)b., Ala. Code 1975, had not been followed, thereby violating DHR’s due-process rights.

Mickey McDermott, the child’s guardian ad litem, filed an objection to DHR’s motion on December 9, 2010. The juvenile court set DHR’s motion for a hearing on January 11, 2011. On January 4, 2011, DHR filed an objection to the hearing scheduled by the juvenile court for January 11, 2011, noting that DHR’s motion had been denied by operation of law on December 21, 2010. See Rule 1(b), Ala. R. Juv. P.; and Rule 59.1(de), Ala. R. Civ. P. Also on January 4, 2011, DHR filed a petition for a writ of mandamus in this court; this court elects to treat that petition as an appeal.

DHR asserts on appeal that the juvenile court erred in placing the child in its custody because, it argues, the juvenile court did not have jurisdiction to place the child in its custody. “Juvenile courts are purely creatures of statute that have extremely limited jurisdiction.” L.B. v. R.L.B., 53 So.3d 969, 972 (Ala.Civ.App.2010). A juvenile court’s jurisdiction to act extends only so far as authorized by the explicit terms of the empowering statute. See Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App.2003). Therefore, the question whether a juvenile court has acted within its proper bounds depends on the meaning of the statute bestowing jurisdiction. See id. Discerning the meaning of a jurisdictional statute involves a pure question of law, which this court reviews de novo. See J.W. v. C.B., 68 So.3d 878, 879 (Ala.Civ.App.2011). Accordingly, in determining whether the juvenile court acted within its jurisdiction, we do not presume that the juvenile court acted correctly in assuming the power to award custody of the child to DHR. See id. Instead, we must determine anew whether the language of the relevant statute, the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975, invests the juvenile court with the power to make such a custodial disposition in the manner in which it did.

The record indicates that the child came within the jurisdiction of the juvenile court pursuant to the filing of petitions alleging the delinquency of the child. The juvenile court originally found the child to be a danger to the person or property of another, and it ordered that the child be placed in detention in the Montgomery County Youth Facility. The child subsequently denied the allegations of delinquency and sought a trial on the matters. After several continuances, the juvenile court determined that the child should be released from detention pending the final hearing on the delinquency petitions; however, the juvenile court ordered that, due to the poor home environment awaiting the child, the child should not return to the physical custody of his mother but, rather, that his custody should be awarded to DHR for placement with a suitable physical custodian. In doing so, the juvenile court declared the child to be dependent. The record indicates, without dispute, that the juvenile court did not notify DHR of the proceedings at any time before entering its custody judgment on November 23, 2010, and that DHR did not otherwise have notice of the case or an opportunity to be heard on the matter of the status of the child or the proper disposition of his custody.

The terms of the AJJA specifically authorize a juvenile court to place a child in the custody of DHR in several instances, only two of which are pertinent to this appeal. First, a juvenile court may transfer custody of a child who has been adjudicated to be a dependent child to DHR pursuant to § 12-15-314(a)(3)a., Ala.Code 1975. Second, a juvenile court may transfer custody of a child who has been adjudicated to be a child in need of supervision to DHR pursuant to § 12-15-215(a)(3)b., Ala.Code 1975.

By the explicit terms of its judgment, the juvenile court apparently attempted to invoke its dependency jurisdiction in order to transfer custody of the child to DHR. The juvenile court declared the child to be dependent because of his home environment, and it ordered DHR to assume custody of the child in order to find the child a proper physical custodian. However, the AJJA does not authorize a juvenile court to declare a child dependent ex mero motu without an evidentiary hearing held in accordance with due process.

The AJJA specifically provides that the dependency jurisdiction of the juvenile court is triggered by the filing of a petition with a juvenile-court intake officer alleging facts sufficient to prove the dependency of the child. See §§ 12-15-114(a) and 12-15-120(a), Ala.Code 1975. The juvenile-court intake officer must then refer the dependency petition to DHR. § 12-15-118(2), Ala.Code 1975. The obvious purpose of the referral is to notify DHR of the dependency proceedings so that it may be given an opportunity to protect its interest in assuring the safe custodial disposition of the child. Hence, a juvenile court would violate the due-process rights of DHR if it adjudicated a child dependent and transferred custody of the child to DHR without providing DHR such notice and an opportunity to be heard. See generally Valero v. State Dep’t of Human Res., 511 So.2d 200 (Ala.Civ.App.1987) (holding that due process must be observed in juvenile-court child-custody proceedings). The AJJA further provides that, if no response is filed to a dependency petition, the juvenile court may find a child dependent only if clear and convincing evidence presented in an adjudicatory hearing establishes the dependency of the child. See § 12-15-310(b), Ala.Code 1975. The record in the present case indicates that no such eviden-tiary proceeding was held. Consequently, the juvenile court did not have jurisdiction to adjudicate the child dependent or to transfer custody of the child to DHR pursuant to its dependency jurisdiction.

Section 12-15-215(a)(3)b. provides that if, upon proof beyond a reasonable doubt, a juvenile court finds a child to be in need of supervision and such child is in need of care or rehabilitation, the juvenile court may transfer legal and physical custody of the child to DHR

“provided however 1. that prior to any transfer of custody to the Department of Human Resources, the case shall first be referred to the county children’s services facilitation team, which must proceed according to Article 5.... ”

In this case, the juvenile court did not hold an adjudicatory hearing to find the child in need of supervision beyond a reasonable doubt and it did not refer the child to the appropriate county children’s services facilitation team. Hence, even if the juvenile court intended to transfer custody of the child to DHR as a child in need of supervision, which is doubtful, it acted outside its jurisdiction by failing to comply with § 12-15-215(a)(3)b. and by failing to notify DHR of the proceedings.

Because the juvenile court was without jurisdiction to enter the judgment finding the child dependent and awarding custody of the child to DHR, we reverse the juvenile court’s judgment, and we remand the cause with instructions to the juvenile court to vacate that judgment. See K.L.B. v. W.M.F., 757 So.2d 476, 479 (Ala.Civ.App.2000). We note that our holding does not preclude the juvenile court, if it complies with the statutes discussed above, from exercising its jurisdiction to find the child dependent or in need of supervision. To the extent DHR’s remaining issues on appeal are not inherently addressed in this opinion, we decline to further discuss them.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The record does not indicate any other statutory bases that the juvenile court possibly could have relied upon in making its custody disposition, so we see no need to discuss the authority of the juvenile court to commit a child to the custody of DHR for temporary or emergency purposes. See § 12-15-141, Ala. Code 1975.