author: THOMAS, Judge.

text:
    ASSET PRESERVATION, LLC v. OAK ROAD WEST, LLC
    2150939
    Court of Civil Appeals of Alabama.
    January 20, 2017 Rehearing Denied March 17, 2017 Certiorari Denied May 12, 2017
    Alabama Supreme Court 1160549
    Franklin H. Eaton, Jr., Northport, for appellant.
    Richard E. Davis, Jr., of Davis & Fields, P.C., Daphne, for appellee.
   THOMAS, Judge.

Asset Preservation, LLC ("Asset"), appeals from a summary judgment entered by the Baldwin Circuit Court in favor of Oak Road West, LLC ("Oak Road"). We affirm.

Background

In 2014, Humphrey Investments, LLC, executed a mortgage in favor of Quality First Financial, Inc., which was secured by certain property that is located in Gulf Shores ("the disputed property"). On March 26, 2015, Quality First Financial, Inc., foreclosed upon the mortgage and purchased the disputed property at a foreclosure sale. On August 19, 2015, Steven G. Humphrey, an "authorized member" of Humphrey Investments, LLC, executed two documents in favor of Oak Road, each entitled "Assignment of Statutory Right of Redemption"; Steven Humphrey executed one of those documents on his own behalf and the other on behalf of Humphrey Investments, LLC (Steven Humphrey and Humphrey Investments, LLC, are hereinafter referred to collectively as "the assignors"). On August 24, 2015, Quality First Financial, Inc., executed a warranty deed conveying its interest in the disputed property to Oak Road.

On March 23, 2016, Steven Humphrey executed a quitclaim deed, individually and on behalf of Humphrey Investments, LLC, conveying their interests, "including the right of redemption," in the disputed property to Asset. Two days later, Asset initiated an action in the circuit court seeking to redeem the disputed property pursuant to § 6-5-248, Ala. Code 1975, and alleging, among other things, that Oak Road had committed waste by making unnecessary permanent improvements on the disputed property and that Asset was therefore unable to ascertain the lawful charges it was required to pay to redeem the property. Thus, Asset requested, among other things, that the circuit court determine the correct amount of lawful charges that it was required to pay to redeem the property.

Oak Road responded to Asset's claims by submitting a motion for a summary judgment on "two completely independent bas[e]s." (emphasis in original.) First, Oak Road asserted that, because the assignors had already assigned their statutory redemption rights to Oak Road when it acquired the disputed property in August 2015, Asset could not have acquired a statutory right to redeem the disputed property via the subsequently executed quitclaim deed referenced in its complaint. Second, Oak Road argued that, even assuming that Asset had acquired a statutory right of redemption, Oak Road was nevertheless entitled to a judgment as a matter of law because Asset had failed to tender the redemption price or, alternatively, had failed to request a statement of lawful charges before the expiration of the redemption period.

Asset submitted a response to Oak Road's motion in which it asserted, among other things, that Oak Road could not rely upon the assignors' assignments of their statutory redemption rights because Oak Road had not recorded the assignments, as Asset contended was required under Alabama law. Asset also admitted that it had not tendered the redemption price or requested a statement of lawful charges but argued that it was not "statutorily required" to do so because there was a "bona fide disagreement as to what are permanent improvements and the value therein."

Oak Road thereafter submitted a "supplemental brief in support of its motion for [a] summary judgment" in which it argued that Asset could not avail itself of the protection afforded by Alabama's recording statutes because, it asserted, those statutes protected only bona fide purchasers, Asset was merely a quitclaim grantee, and quitclaim grantees are not bona fide purchasers as a matter of law. Asset submitted a response to Oak Road's supplemental brief in which it argued that it was permitted to redeem the disputed property notwithstanding the assignors' prior assignments of their statutory rights of redemption to Oak Road because, Asset contended, "[t]he statutory right of redemption, like a license[,] can be assigned as many times as the assignor desires, unless otherwise limited, until one of the assignees exercises the right, as required by statute."

On May 19, 2016, the circuit court entered an order granting Oak Road's summary-judgment motion without specifying the reason for its decision. Asset filed a postjudgment motion on June 18, 2016, and the circuit court entered an order on August 9, 2016, denying Asset's postjudgment motion. Asset filed a timely notice of appeal to the Alabama Supreme Court. The appeal was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review

"The pertinent facts are not in dispute, and, therefore, this action must be resolved by applying the applicable law to the undisputed facts. 'Where only a question of law is presented, a case is appropriate for a summary judgment.' Finch v. Auburn Nat'l Bank of Auburn, 646 So.2d 64, 65 (Ala. Civ. App. 1994) ; see also Bice v. Indurall Chem. Coating Sys., Inc., 544 So.2d 948, 952 (Ala. 1989) ('The uncontroverted facts offered below in support of and in opposition to the motion for summary judgment present a question of law appropriate for resolution by summary judgment.'). " '[O]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court's review is de novo.' " Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala. 1999) (quoting Ex parte Graham, 702 So.2d 1215, 1221 (Ala. 1997) ).

Hardin v. Metlife Auto & Home Ins. Co., 982 So.2d 522, 524 (Ala. Civ. App. 2007). Furthermore, when the summary-judgment movant has presented the trial court with multiple alternative bases for a favorable judgment and "the trial court [has] not specif[ied] the ground upon which it based its summary judgment in favor of [the movant], the law in Alabama is clear that this Court is bound to sustain a trial court's judgment if there is a valid basis for it." Hughes v. Allenstein, 514 So.2d 858, 860 (Ala. 1987).

Analysis

On appeal, Asset argues that the circuit court's judgment should be reversed because, it contends, it acquired the assignors' statutory rights of redemption via the March 23, 2016, quitclaim deed and properly exercised that right by filing its complaint in the circuit court. Oak Road argues that the circuit court's judgment should be affirmed, either because it had already acquired the assignors' statutory rights of redemption before they executed the quitclaim deed to Asset or because Asset did not properly assert its statutory right of redemption by failing to timely request a statement of lawful charges. Notably, Asset does not argue on appeal that the assignors' assignments of their statutory rights of redemption to Oak Road were somehow invalid; rather, it insists that the assignors' conveyance of their statutory rights of redemption via the quitclaim deed to Asset was also valid. Thus, the dispositive issue regarding Oak Road's first argument is whether the assignors' execution of the quitclaim deed effectively assigned to Asset their statutory rights to redeem the disputed property.

"When real property in Alabama is mortgaged, the legal title passes to the mortgagee and the mortgagor retains the equity of redemption, which he may convey. First National Bank of Mobile[] v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala. 1981).... Unlike the equity of redemption, which exists prior to foreclosure and is deemed an interest in the property, the statutory right of redemption arises after foreclosure and is a mere personal privilege conferred by statute; it is not property or a property right."

Dominex, Inc. v. Key, 456 So.2d 1047, 1052-53 (Ala. 1984). Section 6-5-248 provides, in relevant part:

"(a) Where real estate, or any interest therein, is sold the same may be redeemed by:
"....
"(5) Any transferee of the interests of the debtor or mortgagor, either before or after the sale. A transfer of any kind made by the debtor or mortgagor will accomplish a transfer of the interests of that party."

Citing Dominex, supra ; Garvich v. Associates Financial Services Co. of Alabama, Inc., 435 So.2d 30 (Ala. 1983) ; First Colbert National Bank v. Security Federal Savings and Loan Association, 411 So.2d 786 (Ala. 1982) ; Flirt v. Kirkpatrick, 278 Ala. 61, 175 So.2d 755 (1965) ; Stevenson v. King, 243 Ala. 551, 10 So.2d 825 (1942) ; Upchurch v. West, 234 Ala. 604, 176 So. 186 (Ala. 1937) (overruled on another ground by Dominex, supra ) ; Chess v. Burt, 87 So.3d 1201 (Ala. Civ. App. 2011) ; and Deutsche Bank National Trust Co. v. Citibank, N.A., 806 F.Supp.2d 1212 (M.D. Ala. 2011), Asset argues that

"[t]he statutory right of redemption is a mere personal privilege, clearly assignable, that can be exercised by 'any vendee or assignee of the right of redemption under this Code.' Dominex, Inc. v. Key, 456 So.2d 1047[, 1053] (Ala. 1984) [ (quoting former § 6-5-230, Ala. Code 1975 ) ] .... The statutory language and case law does not restrict or otherwise limit the number of times the personal privilege can be assigned but does limit the statutory right to only those identified parties, the hierarchy of redemption rights[,] and exactly how the right must be exercised by the prescribed mode, manner, and time provisions."

(Emphasis in original.)

Oak Road responds by noting that none of the cases upon which Asset relies stand for the proposition that a particular mortgagor can effectively convey its statutory right of redemption to multiple sequential assignees. In support of its position, Oak Road relies upon Warren v. Gallagher, 252 Ala. 621, 42 So.2d 261 (1949), in which our supreme court considered whether a trial court had properly allowed a third party to intervene in a pending action. In so doing, the supreme court summarized the action at issue by stating:

"[The action] was a suit in equity by [Ellison] against [Warren], seeking the enforcement of a statutory right of redemption of real estate after foreclosure of a mortgage. The petition to intervene was filed after Warren had acquired all the right which Ellison sought to enforce by deeds of conveyance. The effect of such conveyance was to cancel Ellison's claim of right to redeem, if he had a right to enforce it. The result of the conveyance to Warren by Ellison, if valid, was by the complainant to the principal respondent and served to place Ellison where he could no longer prosecute the suit, and justified an abatement of it. So that Ellison has destroyed his right to prosecute the suit by his conveyance, and no one is asserting the right to do so by an assignment from him."

252 Ala. at 622, 42 So.2d at 262. Thus, Oak Road contends, "once the [assignors] assigned their statutory right of redemption to Oak Road on August 19, 2015, the [assignors] no longer possessed any enforceable right of redemption, neither to exercise it themselves nor to assign it to Asset."

Oak Road also points to the much more recent case of Richardson v. Stanford Properties, LLC, 897 So.2d 1052 (Ala. 2004), in which our supreme court affirmed the trial court's denial of a petition to redeem real property after a foreclosure sale because the original mortgagor, from whom the purported redemptioner had acquired a statutory right of redemption, had failed to vacate the disputed property within 10 days of receiving a demand from the purchaser that she do so, as required by § 6-5-251, Ala. Code 1975, to avoid forfeiture of her statutory right of redemption. In so doing, the supreme court concluded that the purported redemptioner's statutory right to redeem the property was contingent upon the original mortgagor's compliance with § 6-5-251, and stated:

"If [the purported redemptioner] had 'a totally new and separate right to redeem, unaffected by the notice given to his predecessor,' [the purchaser] argues, then, theoretically, following a demand upon [the purported redemptioner] to vacate, [the purported redemptioner] 'could assign his right to redeem to Jane Doe; who, upon being served notice to vacate could assign to someone else; and on and on.' ... Such a rule would, [the purchaser] insists, 'pervert[ ] the law and obstruct[ ] the rights of the foreclosing mortgage company and the foreclosure purchaser in the property.' ... We agree."

897 So.2d at 1058-59.

As mentioned above, we also note that "the equity of redemption, being a property right which exists before foreclosure, is terminated by a conveyance of that right." Huie v. Smith, 236 Ala. 516, 519, 183 So. 661, 663 (1938) (emphasis added); see also Dominex, 456 So.2d at 1053 ("[B]ecause only those with an interest in the property can redeem, a mortgagor who has conveyed his equity of redemption cannot seek to redeem the property, before or after foreclosure." (Emphasis added)). However, "[t]he statutory rights of redemption... are mere personal privileges and not property or property rights." § 6-5-250, Ala. Code 1975 (emphasis added). Our research has revealed no caselaw explicitly discussing whether a mortgagor can effectively convey the "personal privilege" of statutory redemption to different sequential assignees under § 6-5-248(a)(5).

However, " '[w]ords used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.' " Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 296 (Ala. 1998) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992) ). As noted above, the second sentence of § 6-5-248(a)(5) provides that "[a] transfer of any kind made by the debtor or mortgagor will accomplish a transfer of the interests of that party." (Emphasis added.) Black's Law Dictionary defines "transfer" as: "Any mode of disposing of or parting with an asset or an interest in an asset, including a gift, the payment of money, release, lease, or creation of a lien or other encumbrance." Black's Law Dictionary 1727 (10th ed. 2014)(emphasis added).

Thus, the plain language of § 6-5-248(a)(5) indicates that, through their August 19, 2016, assignments to Oak Road, the assignors had transferred their statutory rights of redemption to Oak Road and had effectively disposed of and parted with those interests in the disputed property, such that they could not subsequently convey those dispossessed interests to Asset via the quitclaim deed that was executed on March 23, 2016. Our interpretation of § 6-5-248(a)(5) is consistent with the supreme court's discussion in Richardson:

"Assignments are governed by § 6-5-248(a)(5), codified from Act No. 88-441, § 2(a)(5). Act No. 88-441 was enacted on the suggestion of the Alabama Law Institute to remedy perceived 'complexit[ies]' in the former statutory scheme and 'obtuseness' in the construction of the scheme found in Alabama caselaw. [Harry] Cohen, [The Statutory Right of Redemption in Alabama: A New Statute Is on the Horizon, 39 Ala. L. Rev. 131,] 157 [ (1987) ]. The language of § 6-5-248(a)(5) differs from the assignability provision of its predecessor, Ala. Code 1975, § 6-5-230, in a number of respects. ...
" Section 6-5-230 and other provisions of the former scheme 'included [an order] of priorities among those entitled to redeem from foreclosure. The provisions of prior statutes relating to priority of rights of redemption were eliminated with the adoption of [Act No. 88-441].' Jesse P. Evans III, Alabama Property Rights and Remedies § 35.5, at 642 (1994) (footnotes omitted). However, for the purposes of this case, the most remarkable change in statutory language was the addition of the second sentence, which states that an assignment merely 'will accomplish a transfer of the interests of [the transferring] party.' (Emphasis added.)
"... It is difficult to imagine why the Legislature, in writing § 6-5-248(a)(5), included the second sentence, other than to declare or emphasize that the mortgagor's assignee simply stands in the shoes of the mortgagor, at least as to the respective positions of the mortgagor and foreclosure-sale purchaser at the time of the assignment. See Nissan Motor Acceptance Corp. v. Ross, 703 So.2d 324, 326 (Ala. 1997) (assignee 'steps into the shoes of the assignor,' acquiring the 'same rights, benefits, and remedies that the assignor possesses'); Watts[ v. Rudulph Real Estate, Inc. ], 675 So.2d [411,] 413 [ (Ala. 1996) ] (the right acquired by the assignee of a statutory right of redemption is 'limited to the right [the assignor] had when he executed the [assignment]')."

897 So.2d at 1058 (final emphasis added). Through the August 19, 2016, assignments, Oak Road "stepped into the shoes" of the assignors and acquired their statutory rights of redemption, and the assignors could not have thereafter conveyed those rights to Asset.

Thus, although we acknowledge the legislature's expression in § 6-5-250 that "[t]he statutory rights of redemption ... are mere personal privileges and not property or property rights," we do not view that declaration as an indication that the legislature intended to prohibit judicial application of "[t]he prevailing principle in this state ... that the grantee of an estate takes no greater estate in the property than the grantor can convey" to assignments of statutory rights of redemption under § 6-5-248(a)(5). Potter v. Owens, 535 So.2d 173, 175 (Ala. Civ. App. 1988). To construe § 6-5-248(a)(5) to mean that a mortgagor can, under Alabama law, effectively assign its statutory right of redemption to a potentially unlimited number of persons would resurrect the "complexity" and "obtuseness" in our caselaw that the legislature sought to remedy by implementing Act No. 88-441, § 2(a)(5), now codified as § 6-5-248(a)(5). See Richardson, supra. We therefore decline Asset's invitation to so construe § 6-5-248(a)(5) in this case, and the circuit court's summary judgment in Oak Road's favor is due to be affirmed.

Because the circuit court did not specify the reason for its decision, and because the circuit court's summary judgment in favor of Oak Road was properly entered based on Oak Road's assertion that Asset had not acquired a statutory right of redemption, we do not consider whether the alternative basis proffered by Oak Road would have also supported a summary judgment in its favor. See Hughes, supra.

AFFIRMED.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

      The record is not clear as to what interest, if any, Steven Humphrey had in the disputed property; however, because the parties do not contend that resolution of the issues on appeal are impacted by any disparity of interest the assignors might have had in the disputed property and because both assignors executed the relevant documents purporting to transfer their redemption rights in the disputed property, we, like the parties, will treat the assignors as if each possessed the statutory right to redeem the property. See Ex parte Professional Bus. Owners Ass'n Workers' Comp. Fund, 867 So.2d 1099, 1101 (Ala. 2003) ("Generally, an appellate court is limited to considering only those issues raised on appeal.").


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Bobby WARD v. ALL SOUTH RENTAL HOMES, INC., and Gary Alan Smith
    2150921
    Court of Civil Appeals of Alabama.
    March 24, 2017 Certiorari Denied May 12, 2017
    Alabama Supreme Court 1160562
    John A. Daugherty, Vestavia Hills, for appellant.
    Russelle L. Hubbard, Alabaster, for appellee.
    On Application for Rehearing
   MOORE, Judge.

This court's opinion issued on January 27, 2017, is withdrawn, and the following is substituted therefor.

Bobby Ward appeals from a judgment entered by the Jefferson Circuit Court ("the trial court") permitting All South Rental Homes, Inc., and Gary Alan Smith (hereinafter referred to collectively as "All South") to redeem certain real property located in Jefferson County ("the property")

after the property had been sold for unpaid taxes. We affirm the trial court's judgment.

Procedural History

On December 7, 2015, All South filed a complaint seeking permission to redeem the property, which had been purchased by Ward from the State of Alabama, which had purchased the property at a tax sale. Ward answered the complaint on December 16, 2015. On December 17, 2015, Ward filed a motion for a summary judgment. All South responded to the summary-judgment motion on January 13, 2016. Ward filed a reply to All South's response on January 16, 2016.

On January 29, 2016, the trial court entered a judgment granting Ward's summary-judgment motion, concluding that All South did not have a right to redeem the property. On February 28, 2016, All South filed a postjudgment motion. The trial court entered an order setting aside its summary judgment on May 23, 2016, and setting a hearing to determine the amount required for All South to redeem the property. After a hearing, the trial court entered a judgment on June 23, 2016, providing that All South could redeem the property by paying Ward $4,206.07.

On June 23, 2016, Ward filed his notice of appeal to the Alabama Supreme Court; that court subsequently transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

Facts

The undisputed facts indicate that, after All South failed to pay the ad valorem taxes due on the property, the State of Alabama offered the property for sale on May 22, 2012. After no bids were offered, the property was purchased by the State. On August 7, 2015, the State sold the property to Ward. Ward received an ad valorem tax deed; that deed was recorded on August 24, 2015. On August 28, 2015, Ward entered into a three-year lease agreement regarding the property with Brooke Holloway, and, at the time of the entry of the trial court's judgment, Holloway had been in possession of the property since that date.

Discussion

I. Finality

"Although neither party has questioned the finality of the trial court's judgment in this case, jurisdictional matters, such as the question whether an appeal is supported by a final judgment, are of such importance that this court takes notice of them ex mero motu." Eubanks v. McCollum, 828 So.2d 935, 937 (Ala. Civ. App. 2002). We requested the parties to submit letter briefs concerning the finality of the judgment in light of the specific requirements set forth in § 40-10-83, Ala. Code 1975, which provides, in pertinent part:

"Upon [a] determination [regarding the amount owed to a tax-sale purchaser] the court shall enter judgment for the amount so ascertained in favor of the [tax-sale purchaser] against the [redemptioner], and the judgment shall be a lien on the land sued for. Upon the payment into court of the amount of the judgment and costs, the court shall enter judgment for the [redemptioner] for the land, and all title and interest in the land shall by such judgment be divested out of the owner of the tax deed."

The June 23, 2016, judgment ascertained the amount necessary for All South to redeem the property; however, the trial court did not enter a judgment awarding All South possession of the property upon its payment of the redemption amount and costs.

" ' "A judgment that conclusively determines all of the issues before the court and ascertains and declares the rights of the parties involved is a final judgment." ' [Pratt Capital, Inc. v.] Boyett, 840 So.2d [138,] 144 [ (Ala. 2002) ] (quoting Nichols v. Ingram Plumbing, 710 So.2d 454, 455 (Ala. Civ. App. 1998) ). 'A judgment that declares the rights of the parties and settles the equities is final even though the trial court envisions further proceedings to effectuate the judgment.' Wyers v. Keenon, 762 So.2d 353, 355 (Ala. 1999). Otherwise stated, a judgment that is 'definitive of the cause in the court below, leaving nothing further to be done, save [its enforcement],' is a final judgment. Ex parte Gilmer, 64 Ala. 234, 235 (1879)."

Faith Props., LLC v. First Commercial Bank, 988 So.2d 485, 490-91 (Ala. 2008).

In the present case, the June 23, 2016, judgment determined that All South was entitled to redeem the property and ascertained the redemption amount; however, that judgment did not divest Ward of title to the property or award All South the property, the last step established in § 40-10-83. Nevertheless, the June 23, 2016, judgment settled the justiciable controversies between the parties as to whether All South could redeem the property and for what amount, which concluded the matters litigated by the parties. The judgment is final for appellate purposes, even though the trial court did not complete what, under these circumstances, would essentially be an executory duty to enter a judgment for All South for the land upon payment of the redemption amount. See Scheve v. McPherson, 44 Md.App. 398, 404 n.1, 408 A.2d 1071, 1075 n.1 (1979) (considering judgment in redemption action to be final upon determination that plaintiff could redeem property even though no title to land passed). Although further proceedings would have to take place for the trial court to comply with the last step in § 40-10-83, those proceedings would be only for the purpose of enforcing the June 23, 2016, judgment. "A judgment that declares the rights of the parties and settles the equities is final even though the trial court envisions further proceedings to effectuate the judgment." Wyers v. Keenon, 762 So.2d 353, 355 (Ala. 1999). Therefore, we conclude that the judgment was sufficiently final to support this appeal.

II. Merits of the Appeal

On appeal, Ward first argues that All South was not entitled to redeem the property pursuant to §§ 40-10-82 and 40-10-83, Ala. Code 1975, because, he says, All South was not in possession of the property at the time of redemption.

Section 40-10-82 provides:

"No action for the recovery of real estate sold for the payment of taxes shall lie unless the same is brought within three years from the date when the purchaser became entitled to demand a deed therefor; but if the owner of such real estate was, at the time of such sale, under the age of 19 years or insane, he or she, his or her heirs, or legal representatives shall be allowed one year after such disability is removed to bring an action for the recovery thereof; but this section shall not apply to any action brought by the state, to cases in which the owner of the real estate sold had paid the taxes, for the payment of which such real estate was sold prior to such sale, or to cases in which the real estate sold was not, at the time of the assessment or of the sale, subject to taxation. There shall be no time limit for recovery of real estate by an owner of land who has retained possession. If the owner of land seeking to redeem has retained possession, character of possession need not be actual and peaceful, but may be constructive and scrambling and, where there is no real occupancy of land, constructive possession follows title of the original owner and may only be cut off by adverse possession of the tax purchaser for three years after the purchaser is entitled to possession."

" 'Section 40-10-82[, Ala. Code 1975,] has been construed as a 'short' statute of limitations ( Williams v. Mobil Oil Exploration & Producing Southeast, Inc., 457 So.2d 962 (Ala. 1984) ), and does not begin to run until the purchaser of the property at a tax sale has become entitled to demand a deed to the land .... Gulf Land Co. v. Buzzelli, 501 So.2d 1211 (Ala. 1987).' " Southside Cmty. Dev. Corp. v. White, 10 So.3d 990, 992 (Ala. 2008) (quoting Reese v. Robinson, 523 So.2d 398, 400 (Ala. 1988) ); see also McGuire v. Rogers, 794 So.2d 1131, 1136 (Ala. Civ. App. 2000). In Southside, under similar circumstances, our supreme court determined that "the three-year statutory period of § 40-10-82... begins to run when the tax purchaser becomes entitled to a deed," not "when the property is transferred to the State for failure to pay taxes." 10 So.3d at 991. Moreover, this "short" statute of limitations does not depend on whether the proposed redemptioner has retained possession of the property. Southside, 10 So.3d at 992 ; McGuire, 794 So.2d at 1136.

In this case, Ward became entitled to a deed to the property on the date that he purchased the property from the State. See, e.g., O'Connor v. Rabren, 373 So.2d 302, 307 (Ala. 1979) ("After the expiration of three years from the date of sale, a purchaser other than the state is entitled to a deed ( [Ala.] Code 1975, § 40-10-29 ), and land bid in for the state may be sold and the purchaser given a deed. [Ala.]

Code 1975, §§ 40-10-132, -135."). Because All South sought to redeem the property within three years of the time Ward became entitled to a deed, we cannot conclude that the trial court erred in allowing All South to redeem the property. Southside, 10 So.3d at 992 ; McGuire, 794 So.2d at 1136.

Ward also argues that All South cannot eject him from the property because he has a deed to the property. He cites Thomas v. Benefield, 494 So.2d 452 (Ala. Civ. App. 1986), in support of his argument. In Thomas, this court held that because the plaintiffs in that case did not have legal title to the property, their ejectment action could not be successful against the tax-sale purchaser. Thomas, 494 So.2d at 452-53. We note, however, that this court specifically stated that the issue of redemption had not been raised in the record and that this court, therefore, would not address that remedy. Thomas, 494 So.2d at 453.

In the present case, however, All South did not seek to eject Ward or his tenant from the property; instead, it sought to exercise its right to redeem the property. Therefore, we conclude that Ward's argument on this point is misplaced.

Conclusion

Based on the foregoing, we affirm the trial court's judgment.

APPLICATION GRANTED; OPINION OF JANUARY 27, 2017, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      Ward filed a petition for a writ of mandamus concerning proceedings to stay the January 23, 2016, judgment, see Exparte Ward, 235 So. 3d 252 (Ala. Civ. App. 2017), which made this court aware that All South had tendered to Ward the redemption amount set by the trial court and that Ward had accepted that amount.
      "The general rule in Alabama is that an appellant who had received proceeds under a judgment or decree which is challenged by appeal must make restitution of the proceeds as a condition precedent to the continuation of his appeal or suffer dismissal....
      "This general rule, however, is not without exception, and the application of the exception works to the benefit of the appellant, not the appellee. The exception allows the appellant to maintain his appeal without refunding the proceeds received under the decree from which he appealed. This exception applies in cases where the appellee would suffer no injury as a result of allowing the appeal while the appellant retains the proceeds....
      " '....'
      "This non-injury oriented exception has been expanded to cover cases wherein the appellant could not, on retrial, recover less than the amount of the appealed decree. Elmore v. Cunninghame, 208 Ala. 15, 93 So. 814 (1922) ; Grief Bros. Cooperage Corp. v. Stacey, 257 Ala. 196, 58 So.2d 122 (1952) ; McCalley v. Otey, 103 Ala. 469, 15 So. 945 (1893) ; McCreeliss' v. Hinkle, 17 Ala. 459 (1850) ; Phillips v. Towles, 73 Ala. 406 (1882)."
      Alco Land & Timber Co. v. Baer, 289 Ala. 567, 570, 269 So.2d 99, 101-02 (1972).
      In Alco, our supreme court determined that, because the reversal of the judgment permitting redemption in that case would result in the restitution of the redemption amount, no injury would result in allowing the appellant to receive that amount pending the appeal. Therefore, the court determined that the appellant had not waived his right to appeal by accepting the redemption amount. 289 Ala. at 571, 269 So.2d at 102-03.
      Similarly, in the present case, if the June 23, 2016, judgment permitting redemption were to be overturned on appeal, Ward would be required to return the redemption amount to All South. Therefore, we perceive no resulting injury in allowing Ward to retain that amount while pursuing his appeal and, thus, conclude that Ward did not waive his right to appeal by accepting the redemption amount.


text:
    F.C. v. S.J.M.
    2160164
    Court of Civil Appeals of Alabama.
    May 26, 2017
    Joan-Marie Sullivan, Huntsville, for appellant.
    Submitted on appellant's brief only.
   MOORE, Judge.

F.C. ("the mother") appeals from a judgment of the Madison Juvenile Court ("the juvenile court") that, among other things, awarded S.J.M. custody of the child born to the parties and ordered the mother to pay child support. We affirm the juvenile court's judgment.

Procedural History

On March 16, 2016, S.J.M. filed in the juvenile court a verified petition for custody, alleging, among other things, that a child had been born to the parties on November 14, 2008, that S.J.M. had completed a "Voluntary Acknowledgment of Paternity" at the child's birth, that the parties were never married, and that the child was in the mother's custody. S.J.M. sought "a finding that [he] is the legal and biological father of the minor child," an award of sole physical custody and joint legal custody of the child, and an award of child support from the mother. On April 7, 2016, the mother filed a motion to dismiss S.J.M.'s petition for lack of jurisdiction. She alleged, among other things, that paternity of the child was not at issue, that no previous custody order regarding the child had been entered, that there was no allegation of dependency in S.J.M.'s petition, and that the case was merely a child-custody proceeding. S.J.M. filed a response to the mother's motion on April 19, 2016. On May 9, 2016, S.J.M. filed an amended petition, adding "a request for a judicial determination of paternity." On May 26, 2016, S.J.M. filed a motion for a pendente lite order awarding him sole physical and legal custody of the child.

The mother filed an answer to S.J.M.'s original petition on June 3, 2016. She filed an answer to S.J.M.'s amended petition on that same date; the mother asserted in that answer that she had no objection to a judicial determination of paternity. The mother also filed a counterclaim requesting, among other things, sole physical and legal custody of the child, an award of child support, and an award of retroactive child support in favor of the mother and against S.J.M. The mother filed a motion seeking pendente lite relief on June 3, 2016, as well. The juvenile court conducted a pendente lite hearing on June 8, 2016, and, on June 17, 2016, the juvenile court entered a pendente lite order that ordered the parties to exercise joint custody of the child pending a final hearing and directed how the custody exchanges should occur. On October 11, 2016, S.J.M. filed an answer to the mother's counterclaim.

The trial was conducted on October 24, 2016. On October 26, 2016, the juvenile court entered a final judgment adjudicating S.J.M. as the legal father of the child, pursuant to the Alabama Uniform Parentage Act ("the AUPA"), Ala. Code 1975, § 26-17-101 et seq. ; awarding the parties joint legal custody of the child; awarding S.J.M. sole physical custody of the child, subject to the mother's visitation rights; ordering the mother to pay to S.J.M. $237 per month in child support; and denying all remaining requested relief. The mother filed a postjudgment motion on November 9, 2016. On November 17, 2016, the juvenile court entered an order on the mother's postjudgment motion; the juvenile court made additional findings, but it otherwise denied the relief sought in the mother's motion. The mother filed her notice of appeal to this court on November 30, 2016.

Facts

S.J.M. (hereinafter referred to as "the father") testified that he and the mother first became involved in a relationship in 2007, while he was living in Virginia and the mother was living in Maryland. He testified that the child was born on November 14, 2008; that, in 2010, the parties had relocated to Madison, Alabama, with the child; and that the parties had ended their relationship in 2011. S.M., the child's paternal grandmother, testified that the father and the mother had lived with her in Virginia when the mother was pregnant with the child and that the mother and the child had continued to live with her when she moved to Madison in 2010 until the mother and the child moved to Huntsville in 2011. The paternal grandmother also testified that the mother and the child had stayed with her at times since they had moved to Huntsville. According to the father, after the parties separated in 2011, he moved from Madison to Virginia, and then he moved to Enterprise, Alabama. The father testified that he lived in Enterprise until he moved back to Madison in February 2016. He stated that, when he lived in Enterprise, he had visited the child on his days off, on holidays, on birthdays, on other vacation days, and at other times. The father testified that he had seen the child at least once or twice a month during that time. He admitted that he had never paid any child support to the mother.

According to the father, at the time of the trial, he was living in a four-bedroom house in Madison that belongs to the paternal grandmother. He testified that the paternal grandmother occupies 1 bedroom; that he and his current wife, M.M., share a bedroom; that his 2 stepsons, ages 7 and 11, share a bedroom; and that his two daughters by his current wife, ages 2 and 4, share a bedroom with the child when she is in his custody, and that their shared bedroom has bunk beds. He testified that he works for a defense commissary and that he had worked for that employer for almost seven years. The father testified that the child was attending a private school operated by St. Johns Baptist Catholic Church at the time of the trial and that she had been enrolled in that school from pre-kindergarten through the second grade. He stated that he pays the child's school tuition and that the child has many friends at her school. According to the father, the child was doing better in school at the time of the trial than she had in the previous year, although, he said, she continued to have difficulties with reading and spelling.

The father testified that the child and her stepbrother, who are the same age but in different schools, help each other with their schoolwork and that that had helped the child improve in school. M.M. testified that their household is very family oriented and that they have a steady routine and maintain a schedule for the children. M.M. testified that she and the father transport the child to and from school. M.M. and the paternal grandmother reiterated the father's testimony that M.M.'s son, the child's stepbrother, helps the child with her homework and with understanding their schoolwork. M.M. stated that she and the father try to keep the children busy with extracurricular activities to make sure that they are disciplined and as an incentive to maintain their grades. The father testified that he had enrolled the child in a gymnastic class over the summer, although, he said, she had recently stopped attending that class. He stated that the mother did not take the child to the gymnastic class during her custodial periods. The father stated that the child had been having issues with her sight, that she had been prescribed a pair of glasses two weeks before the trial, and that the child had been more active and in high spirits since she had received the glasses. According to the father, the child interacts well with her half sisters and stepbrothers and is very close to the paternal grandmother. He stated that he loves the child with all his heart, and M.M. testified that she loves the child like she is her own.

The paternal grandmother testified that the father, the father's brother, her foster son, and her two nephews live near Madison and are involved in the child's life. She testified that the mother had stayed with her and her nephew at times when the mother's utilities had been turned off, that another of her nephews had kept the child and taken her to school, and that the father and the father's brother had kept the child at times. S.D.B., the paternal grandmother's cousin, testified that he had lived with the mother at her apartment for six months in 2011, along with his girlfriend at the time, A.P., who, he said, had been present at the apartment "every day, every night" although she had not "technically" lived there the entire six-month period. According to S.D.B., the mother had gone out at night while S.D.B. and A.P. had cared for the child until 2:00 or 3:00 a.m. each night. S.D.B. testified that the mother would sleep late and that he had made the child breakfast and changed her diapers while the mother slept until at least noon each day. He testified that the mother had allowed people she had just met to babysit the child, and, he said, he had felt like he had to keep the child for the child's safety. He stated that he had not paid rent while living at the mother's apartment but that he had paid the electric bill, and that, after he had moved out of the mother's apartment, the electricity had been turned off for three months. S.D.B. stated that, when he had lived with the mother, she had not cooked or cared for the child and that she had not cleaned the apartment.

A.P. testified that, when she had lived with the mother for three or four months at the end of 2010 and the beginning of 2011, the mother had stayed mostly in her bed or had gone out at night, and that the mother had not taken care of the child. According to A.P., she or S.D.B. had cared for the child on a daily basis during that time, including feeding the child and changing her diapers. A.P. testified that she had continued to care for the child until 2013, although, she said, she had not been living with the mother, and that she had kept the child from Sunday to Friday each week for approximately two years. E.D.L., the father's cousin, testified that the mother had been to his house with the child from time to time to wash clothes and to spend the night, sometimes for weeks or months at a time up until August 2015, when he had been incarcerated for driving under the influence. He stated that he had allowed the visits to continue because he was "looking out" for the child and because the mother's house "was a wreck." He testified that the mother's house had had clothes, food, and ashtrays all over the bedroom; that the bathroom floor had been "coming up" and the toilet was backed up; and that the back doors of the house had not had locks on them.

The mother denied the testimony of S.D.B. and A.P. indicating that she had stayed out late at night or that she had left the child in S.D.B.'s or A.P.'s care. According to the mother, her most recent employment had ended two years before the trial because of her health conditions, which include asthma, allergies, and eczema, which, she testified, are all exacerbated by living in Alabama. The mother stated that her face, hands, and legs all break out, that she cannot breathe during pollen season, that her face and eyes become swollen, that her asthma flares up, and that she has to use a nebulizer or an inhaler or go to the emergency room in extreme instances. The mother testified that she also has dental issues that will require her to have surgery to replace all her teeth, that it will take anywhere from three months to a year for her to recover from that surgery, and that she would need support from her family in Virginia during that time. The mother testified that her conditions improve in Virginia and that she wanted to move there to be with her family.

A.C., the child's maternal grandfather, testified that he resides in Alexandria, Virginia, and that he speaks to the mother every day. He testified that he and the child's maternal grandmother are divorced but that they both live in Virginia and that he would pay for the mother and the child to live in Norfolk, Virginia, where the maternal grandmother resides. According to the maternal grandfather, he had purchased diapers and clothes and had given the mother money for the child since she was born until the time of the trial. He testified that he had begun supporting the mother and the child after the mother had quit working two years before the trial. He stated that, at the time of the trial, he was paying the mother's rent, that the mother was driving a vehicle that is registered in his name, and that he was paying for the insurance on that vehicle. The maternal grandfather stated that the mother's utilities had been cut off once because he had been out of the country and had forgotten to make that payment, but that it would not happen again. He testified that he was committed to paying certain expenses for the mother and the child if they moved to Virginia and that he believed that that move was important because the mother would have more family support and fewer health problems. He testified also that he believed the mother would be able to get a job if she moved to Virginia. The maternal grandfather testified that, if the mother stayed in Alabama, he would continue to pay her expenses, but, he said, "she needs to find a job." He clarified that he would continue to support the mother until she could find a job.

The mother testified that she had primarily taken care of the child since the child was born and that the father had never provided for the child. She testified that, at the time of the trial, she and the child were living in a four-bedroom house and that she was driving a vehicle registered in her father's name. According to the mother, when the child gets home from school, they do homework together and then the child showers, they have dinner, and they watch a little television before going bed. She testified that the child gets more one on one time at her house than she does when she is with the father and that her household is more structured than his. The mother agreed that the child has difficulty in school with reading and grammar and that she has a speech impediment. She testified that there is someone in the classroom that the child's school had put in place to assist the child and that she had registered the child for reading classes during the summer of 2016. The mother stated that she had participated in the child's reading program and that, although the father had taken the child to the classes, he had not stayed to participate in the classes with the child. With regard to the child's gymnastic classes, the mother stated that the child had lost interest and that she was not going to force the child to participate.

The mother testified that it would be best for her and the child to relocate to Virginia because, she said, she would have family support and her health would improve. She stated that her mother, her brothers, her sister, her aunts and uncles, and her cousins all reside in Virginia and that they have a close relationship with the child. According to the mother, she had missed the deadline to enroll the child in Catholic school in Virginia, so, she said, the child would attend public school for the school year following the trial but would attend private school the next year. The mother admitted that the child has a lot of friends at the school she was attending at the time of the trial, which she had been attending for four years. The mother also testified that she would have better job opportunities in Virginia because her health would improve there. The mother testified that the father loves the child and that, although she and the father have difficulty communicating, they both love and care for the child. She testified that she would not move to Virginia if the child was not allowed to go with her.

The mother presented testimony from several friends indicating that she and the child have a close and loving relationship. Two of those friends indicated that they had not known of a period when the child had been living with someone else, such as A.P. Additionally, the mother's friends indicated that the condition of the mother's house was "fine for [their] standards" and that it was "decent" with regard to its cleanliness. They clarified that the house was appropriate, although not neat, in their opinions.

Analysis

The mother makes two arguments on appeal: that the juvenile court erred in awarding sole physical custody of the child to the father and that the juvenile court lacked subject-matter jurisdiction to enter its judgment. We first address the mother's argument with regard to the juvenile court's subject-matter jurisdiction.

The mother argues on appeal that the father failed to make any allegations in his original petition that the child was dependent or that he was seeking a judicial determination of paternity such that the juvenile court acquired subject-matter jurisdiction over the father's action. She asserts that the father's original petition requested only a custody determination and that his amendment to his petition to include a request for a judicial determination of paternity did not cure the deficiencies in his original petition. "Lack of subject-matter jurisdiction can be raised at any time by the parties or by this court ex mero motu." J.L. v. Morgan Cty. Dep't of Human Res., 182 So.3d 570, 571 (Ala. Civ. App. 2015).

In his original petition, the father asserted, among other things, that he is the child's father and that he had completed a voluntary acknowledgment of paternity at the child's birth; he requested, among other relief, that the juvenile court "make a finding that the [father] is the legal and biological father of the minor child." The mother asserted in her motion to dismiss that the father had completed a voluntary acknowledgment of paternity at the child's birth and argued, among other things, that "[p]aternity of the minor child is not at issue and has never been at issue." There is no indication in the record on appeal, however, that the parties filed the acknowledgment of paternity with the Alabama Office of Vital Statistics. See § 26-17-304(b), Ala. Code 1975 ("An acknowledgment of paternity takes effect upon the signature of both the mother and putative father and the filing of the document with the Alabama Office of Vital Statistics."). Accordingly, the completion of the acknowledgment of paternity by the father without properly filing the acknowledgment did not legally establish the paternity of the child in this case. See § 26-17-304(b) and § 26-17-305, Ala. Code 1975. The AUPA provides for the juvenile court's jurisdiction in a case like this, in which the father has sought an award of child support pursuant to an action seeking a determination of parentage. See § 26-17-104, Ala. Code 1975; see also § 12-15-115, Ala. Code 1975.

At the trial, the parties stipulated that S.J.M. is the father of the child. In L.L.M. v. J.M.T., 964 So.2d 66, 73-74 (Ala. Civ. App. 2007), this court observed that a stipulation that there is no dispute as to paternity cannot divest the juvenile court of the subject-matter jurisdiction conferred on it by the legislature. Because we have already determined that the juvenile court in the present case had subject-matter jurisdiction to determine the father's paternity pursuant to his requests for custody and child support, the parties' stipulation as to the paternity of the child did not divest the juvenile court of jurisdiction to make those determinations. We conclude, therefore, that the juvenile court had subject-matter jurisdiction over the father's petition, as amended, insofar as it sought a determination of paternity, custody, and child support with regard to the child.

We next address the mother's argument on appeal that the juvenile court erred in awarding sole physical custody of the child to the father. First, the mother argues that the juvenile court erred in failing to apply the standard outlined in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), with regard to a modification of custody. Citing Greene v. Greene, 249 Ala. 155, 30 So.2d 444 (1947), and T.N.S.R. v. N.P.W., 170 So.3d 684 (Ala. Civ. App. 2014), the mother argues that the McLendon standard is applicable in the present case. In Greene, the parties were divorced by a judgment of the Jefferson Circuit Court and, pursuant to an agreement of the parties, the father was awarded sole physical custody of the only child of the marriage. 249 Ala. at 155, 30 So.2d at 444. The mother later filed a petition seeking a modification of custody, which the circuit court granted. Id. Our supreme court reversed the circuit court's judgment, observing, among other things, that

" '[w]here a parent has transferred to another the custody of his infant child by fair agreement, which has been acted upon by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless he can show that a change of the custody will materially promote his child's welfare.' "

249 Ala. at 157, 30 So.2d at 445 (quoting Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687 (1898) ).

This court observed in T.N.S.R. that the above-quoted statement in Greene"has since morphed into the [Ex parte ] McLendon [, 455 So.2d 863 (Ala. 1984),] standard." 170 So.3d at 687. In T.N.S.R., the child at issue was born out of wedlock. 170 So.3d at 685. The parties originally raised the child jointly until the child was approximately one year old, when the father moved to another state, leaving the child in the care of the mother and the child's paternal grandmother. Id. The father had continued to pay child support and to visit the child until the mother began a relationship with another man and the father lost communication with the mother and the child. Id. The father commenced a paternity and custody action, and, ultimately, the juvenile court in that case entered a judgment awarding the father sole physical custody of the child. Id. at 686. On appeal, this court observed that the juvenile court had not applied the rule of law outlined in Greene"because the parties tried the case under the theory that the juvenile court was making an initial custody determination based on the best interests of the child. See Ex parte Couch, 521 So.2d 987 (Ala. 1988)." Id. at 687. This court continued:

"However, even using the best-interests-of-the-child standard, the juvenile court was required to consider 'the effect on the child of disrupting or continuing an existing custodial status.' Ex parte Devine, 398 So.2d 686, 697 (Ala. 1981).
"In this case, the mother acted as the primary caretaker of the child for years, a weighty consideration. See Kaiser v. Kaiser, 868 So.2d 1095, 1101 (Ala. Civ. App. 2003) ('We agree that who the primary caregiver of a child has been is an important factor. Indeed, it may even be dispositive in an appropriate case.'). During that time, the child apparently received appropriate daily care from the mother, and the father failed to present any evidence rebutting the presumption of her fitness. See T.J. v. Calhoun Cnty. Dep't of Human Res., 116 So.3d 1168, 1175 (Ala. Civ. App. 2013) ('[T]he law presumes that a custodial parent is fit in every respect to care for his or her children.'). A trial court should tread lightly when considering severing 'ties of affection resulting from years of association between the child and its custodian,' Dale v. Dale, 54 Ala.App. 505, 507, 310 So.2d 225, 227 (Civ. App. 1975), and, ordinarily, a trial court should not disturb the 'stability in a child's environment and the child's relationships with those who have cared for and loved [him or her].' R.K. v. R.J., 843 So.2d 774, 777 n.2 (Ala. Civ. App. 2002).
"Furthermore, '[w]hen resolving a custody dispute, particularly in these days of blended families, a trial court should not perfunctorily separate half siblings without giving sufficient consideration to the best interests of the children at issue.' A.B. v. J.B., 40 So.3d 723, 730 (Ala. Civ. App. 2009)."

170 So.3d at 687.

In accordance with T.N.S.R., we disagree with the mother's assertion on appeal that the juvenile court in the present case was required to apply the standard expressed in Ex parte McLendon with regard to the father's custody petition in the present case. Rather, like in T.N.S.R., the juvenile court in the present case was required to apply the best-interests standard discussed in Ex parte Couch, 521 So.2d 987 (Ala. 1988), while considering " 'the effect on the child of disrupting or continuing an existing custodial status.' " T.N.S.R., 170 So.3d at 687 (quoting Ex parte Devine, 398 So.2d 686, 697 (Ala. 1981) ).

The juvenile court did not specify which standard it applied in the present case. The mother argues on appeal that the juvenile court's judgment is due to be reversed even applying the best-interests-of-the-child standard.

"In determining whether an award of custody would be in the children's best interest, the court considers such factors as 'the children's age and sex and each parent's ability to provide for the children's educational, material, moral, and social needs. Tims v. Tims, 519 So.2d 558 (Ala. Civ. App. 1987). Likewise, it is proper for the court to consider the "characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.' " Graham v. Graham, 640 So.2d 963, 964 (Ala. Civ. App. 1994) (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981) ). The trial court's overriding consideration is the best interests and welfare of the children. Id. Because the trial court's award of custody based on ore tenus evidence is afforded a presumption of correctness on appeal, Scholl v. Parsons, [655 So.2d 1060 (Ala. Civ. App. 1995) ], this court is not permitted to reweigh the evidence on appeal or to substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala. Civ. App. 2000).

M.S.H. v. C.A.H., 829 So.2d 164, 168 (Ala. Civ. App. 2002).

The mother points to evidence presented at the trial, which, she says, indicates that she is a more stable parent than the father. There was evidence presented, however, indicating that the mother had left the child in the care of others; that she had neglected the child's care at times while she enjoyed late nights out and slept in on other days; that the mother's house was not kept clean; that the mother intended to move to Virginia with the child where the child would first transfer to public school and then to a different private school the next year; and that the mother had not been employed in the two years preceding the trial and relied financially on the maternal grandfather.

The father presented evidence indicating that the child is close to her half sisters and stepbrothers and the paternal grandmother; that the child had attended the same private school since she had entered school and was receiving special assistance in school for her difficulties with reading and spelling; that the father's stepson is the same age as the child and assists the child with her schoolwork; and that the child's schedule is structured in the father's home. Additionally, in its order denying the mother's postjudgment motion, the juvenile court noted the maternal grandfather's testimony indicating that the mother needed to find a job in concluding that the mother had not been unable to find a job in Alabama because of her health problems. Thus, the juvenile court could have considered its assessment of the mother's credibility in viewing the remaining disputed evidence. The juvenile court could have determined from the evidence presented that the father could provide a more stable home for the child and that the effect on the child of disrupting the existing custodial status was mitigated by the fact that the child would remain in a school that she had attended consistently and where she had friends and assistance with her difficulties; that the child would remain close to her family members in Alabama; that the mother intended to disrupt the child's existing status by moving to Virginia and enrolling her in a public school for one year and then a private school the following year; and that the father was more able to provide for the child than the mother, who was financially reliant on the maternal grandfather. Considering our standard of review, we conclude that the evidence presented at the trial supports the juvenile court's judgment awarding sole physical custody of the child to the father and that that judgment is due to be affirmed.

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.


author: PITTMAN, Judge.

text:
    EX PARTE A.L.F.
    (In re: E.A.B. v. A.L.F.)
    2160465
    Court of Civil Appeals of Alabama.
    May 26, 2017
    Heather Fann of Fann Law, LLC, Birmingham, for petitioner.
    Andrew J. Coleman, Birmingham, for respondent.
   PITTMAN, Judge.

In this paternity and custody action, A.L.F. ("the mother") has petitioned this court for a writ of mandamus directing the Jefferson Family Court ("the juvenile court") to "certify [its] record for appeal." We deny the mother's petition.

Procedural Background

In May 2014, E.A.B. ("the father") filed a petition in the juvenile court requesting that he be declared the biological parent of the mother's then unborn child. It appears that the juvenile court held a two-day ore tenus trial in October 2015.

In December 2015, the juvenile court entered a judgment declaring the father to be the child's biological parent, awarding him visitation with the child, and directing him to pay the mother child support. According to the mother's mandamus petition, the father filed a postjudgment motion that was, pursuant to Rule 59.1, Ala. R. Civ. P., denied by operation of law. The materials before this court indicate that, on January 25, 2016, the father filed a notice of appeal from the juvenile court's judgment, designating this court as the appropriate appellate court.

The father's notice of appeal also indicated that a transcript of the proceedings would be ordered and designated Tracy Richardson as the court reporter who would create the transcript. In her mandamus petition, the mother describes Richardson as the juvenile court's regular "in-house" court reporter. The mother asserts, however, that Richardson was not present for the trial. Attached to the mother's mandamus petition is a portion of a trial transcript indicating that a different court reporter, Jennifer Gremmels, had been present for the trial. The mother asserts that, because of what she suggests was the father's failure to designate the correct court reporter, the juvenile-court clerk transferred the father's appeal to the Jefferson Circuit Court ("the circuit court") for a trial de novo. See generally Rule 28(B), Ala. R. Juv. P. (indicating that an appeal from a final judgment of a juvenile court shall be to the circuit court for a trial de novo when there does not exist an "adequate record" for a direct appeal to an appellate court).

On March 16, 2016, the mother filed in the juvenile court a "request for certification of adequate record." In that request, she asserted: "[The mother] believes [that the juvenile court] has an adequate record from the trial of this case." Alternatively, the mother asserted that a court reporter, Gremmels, had been present during the trial and had recorded the proceedings. In her prayer for relief, the mother requested the juvenile court to "certify the adequate record" or to direct the father to "bear the costs of providing a transcript of the trial to be certified as an adequate record."

On March 23, 2016, the juvenile court, without explanation, denied the mother's motion. The mother asserts that, thereafter, she obtained from Gremmels a transcript of the trial testimony. On May 5, 2016, the mother filed a motion with the juvenile court, which was styled as a "request for certification of trial transcript as an adequate record." The mother purported to attach to that motion a copy of the transcript she had obtained from Gremmels, and she requested the juvenile court to "certify the trial transcript as an adequate record" for a direct appeal to this court. The next month, the mother filed a motion in the circuit court requesting that court to dismiss the father's appeal. Thereafter, the circuit court entered an order temporarily staying the proceedings in the circuit court, pending resolution of the issues raised by the mother in the juvenile court. On August 10, 2016, the juvenile court entered an order denying the mother's "request for certification of trial transcript as an adequate record."

The mother did not file a mandamus petition or an appeal challenging the juvenile court's August 10, 2016, order. Rather, on October 12, 2016, the mother, having obtained new counsel, filed, in the juvenile court, a "renewed motion to dismiss/motion to reconsider." In her motion, the mother asked the juvenile court to reconsider its prior rulings denying the mother's requests to "certify" the record as adequate. In her prayer for relief, the mother requested the juvenile court to "formally designate the court reporter present at [the] trial and/or to certify the transcript of the same as necessary to allow this matter to properly proceed to appeal." On March 10, 2017, the juvenile court entered an order denying the mother's motion. Fourteen days later, the mother filed her mandamus petition.

Discussion

The father argues that the mother's mandamus petition was not timely filed. The parties agree that the mother was required to file her petition "within a reasonable time" and that the presumptively reasonable time in a juvenile proceeding is 14 days from the entry of the order sought to be reviewed. See Rule 21(a)(3), Ala. R. App. P. (stating that the presumptively reasonable time for the filing of a mandamus petition is "the same as the time for taking an appeal"); and Rule 4(a)(1), Ala. R. App. P. (stating that an appeal from a final judgment entered by a juvenile court is to be filed within 14 days of the entry of that judgment).

The juvenile court denied the mother's first motion, styled as a "request for certification of adequate record," on March 23, 2016. On August 10, 2016, the juvenile court denied the mother's second motion, styled as a "request for certification of trial transcript as an adequate record," after the mother apparently had submitted a copy of the trial transcript she had obtained from Gremmels. The mother does not dispute that she filed her mandamus petition more than 14 days after entry of the juvenile court's orders denying her first two motions. Rather, she points to her "renewed motion to dismiss/motion to reconsider," which was denied within 14 days of the filing of the mother's mandamus petition.

Motions to "reconsider" do not toll the deadline for seeking mandamus review. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala. 2003). The mother, however, draws a distinction between the relief requested in her last motion and the relief requested in her earlier motions. Thus, she implies, the last motion was not merely a motion to reconsider. Specifically, the mother points out that, in her last motion, she requested the juvenile court to "designate the court reporter present at [the] trial."

Rule 28(A)(1)(c), Ala. R. Juv. P., provides that an appeal from a final judgment of a juvenile court shall be to the appropriate appellate court if a right to a jury trial does not exist and if an adequate record of the proceeding is available. Otherwise, under Rule 28(B), Ala. R. Juv. P., an appeal shall be to the circuit court for a trial de novo. Under subsection (i) of Rule 28(A)(1)(c), an adequate record of a juvenile proceeding may be available in a proceeding that has been recorded by electronic means, if the juvenile court designates a person to transcribe the recording and to prepare a reporter's transcript in accordance with the Alabama Rules of Appellate Procedure and if the juvenile court certifies the record as adequate for appeal. This court notes, however, that it is not bound by a juvenile court's determination that a record is adequate. See S.J. v. K.J., 206 So.3d 641, 644 (Ala. Civ. App. 2016). Alternatively, under subsection (ii) of Rule 28(A)(1)(c), an adequate record may exist if a licensed court reporter is present to record the proceedings and, upon designation by the juvenile court to do so, the court reporter transcribes the record and prepares a reporter's transcript in accordance with the Alabama Rules of Appellate Procedure. The Comment to Amendment to Rule 28 Effective July 1, 2014, states, in part:

"Subsection (A) of Rule 28 was amended to eliminate the necessity of certifying the record as adequate in designated circumstances. Specifically, the juvenile court judge must certify that the record is adequate unless a licensed court reporter was present to record the proceeding, and the court reporter certifies the record as provided by the Alabama Rules of Appellate Procedure."

The mother asserts that her first two motions sought certification by the juvenile court of an alleged audio recording as an adequate record for direct appeal to this court, presumably pursuant to Rule 28(A)(1)(c)(i), and that her third motion sought formal designation of a court reporter, presumably pursuant to Rule 28(A)(1)(c)(ii). The mother's first motion, however, set forth not only the mother's position that the juvenile court "had an adequate record from the trial of this case," but also her alternative position that Gremmels was available to prepare a transcript of the proceedings. In her second motion, in requesting the juvenile court to take steps the mother believed necessary to have the appeal proceed in this court, the mother relied exclusively on the transcript she had obtained from Gremmels. Although the mother did not use the specific term "designate" until she filed her third motion, we view the substance of the first two motions as, at least in part, requests under Rule 28(A)(1)(c)(ii). It is somewhat noteworthy that, in her mandamus petition, the mother describes her initial request for "certification" as a motion to correct a clerical mistake under Rule 60(a), Ala. R. Civ. P., which, she suggests, authorized the juvenile court to correct an allegedly improper designation of the court reporter, and she asserts that her later motions "were for reconsideration of her original Rule 60(a) motion." Even if this court were to draw the same distinction the mother draws, we note that, in her mandamus petition, the mother asks this court to direct the juvenile court to "certify the record for appeal," not to "designate the court reporter present at [the] trial."

In addition, it appears that this matter is moot. The materials before this court indicate that, before the mother filed her mandamus petition, the parties entered into an agreement resolving the issues pending in the circuit court. It also appears that the parties submitted their agreement to the circuit court, which apparently entered a judgment incorporating the agreement. Although the circuit court had, at one point, temporarily stayed the appeal in the circuit court, it does not appear that the proceedings were ever remanded to the juvenile court. It appears that, at the time the circuit court entered its judgment, steps necessary for the establishment of an adequate record for a direct appeal to this court, including certification under Rule 28(A)(1)(c)(i), Ala. R. Juv. P., or the designation of a court reporter under Rule 28(A)(1)(c)(ii), Ala. R. Juv. P., had not been taken. Thus, we disagree with the mother's suggestion that the circuit court lacked jurisdiction at the time it entered the judgment incorporating the parties' settlement agreement.

Based on the foregoing, we conclude that the mandamus petition is due to be dismissed.

PETITION DISMISSED.

Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.

      In response to a motion to dismiss the mother's mandamus petition as untimely, which has been filed by the father, the mother asserts that her "request for certification of adequate record" was, at least in part, aimed at obtaining a "certification of the audio recording of the [juvenile-court proceedings] as adequate." See generally Rule 28(A)(1)(c)(i), Ala. R. Juv. P. (setting out circumstances in which a direct appeal from a juvenile-court judgment is appropriate in the Court of Civil Appeals in a proceeding that has been recorded by "electronic means").

      Apparently, the mother also filed her "renewed motion to dismiss" in the circuit court.

      Although not entirely clear, there may also be some suggestion that this mandamus proceeding involves questions of jurisdiction and, therefore, may be considered even if untimely filed. See Ex parte K.R., 210 So.3d 1106, 1112 (Ala. 2016) (suggesting that appellate courts may consider untimely mandamus petitions that challenge orders as void for lack of jurisdiction, based on the principle that appellate courts may raise the issue of subject-matter jurisdiction ex mero motu at any time). This court is not convinced, however, that the juvenile court's orders denying the mother's motions for certification of the record are "void" for lack of jurisdiction.

      The copy of the final judgment before this court is not complete, so we cannot conclusively determine whether it incorporated all the provisions of the parties' settlement agreement.

      We also conclude that the materials before this court do not establish that the mother was, as she claims, "forced into" the settlement agreement in the circuit court.