J.M.M. v. J.C.

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REL: 05/07/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter o f Decisions, Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2009-2010 2090172 J.M.M. v. J.C. Appeal from Geneva J u v e n i l e Court (JU-06-247.01) THOMPSON, P r e s i d i n g Judge. J.M.M. August ("the mother") 19, 2009, judgment appeals from the j u v e n i l e finding c h i l d " ) , dependent and d e t e r m i n i n g her child, that court's J.M. ("the i t was i n t h e c h i l d ' s 2090172 best interest child t o r e m a i n i n t h e c u s t o d y o f J . C . , w i t h whom t h e had been The living record September 2005. to J.C., s a y i n g time, t h e summer o f 2006. i n d i c a t e s the f o l l o w i n g . in that since The c h i l d was born I n June 2006, t h e mother b r o u g h t t h e c h i l d that J.C.'s the mother l e f t s o n was the c h i l d the child's with father. J . C . , who At contacted t h e G e n e v a C o u n t y D e p a r t m e n t o f Human R e s o u r c e s ("DHR"). D e c e m b e r 1 3 , 2 0 0 6 , DHR alleging that the c h i l d the juvenile court was dependent. positive with filed i n the j u v e n i l e was d e p e n d e n t . held The a petition a hearing child's she was too and agreed maternal i l l to care that the grandmother f o r the to the mother's r i g h t In A p r i l child 2007, be r e t u r n e d transcript requested to her. A hearing hearing child. The t o J.C., that custody appears i n the record, w h e t h e r t h e m o t h e r was r e p r e s e n t e d time. Nonetheless, entered a judgment the hearing, and i t by counsel No i s at that the j u v e n i l e ( " t h e May 2 0 0 7 j u d g m e n t " ) f i n d i n g 2 of the was h e l d i n M a y 2 0 0 7 . unclear after i s HIV to v i s i t a t i o n . the mother of that child the c h i l d j u v e n i l e c o u r t awarded t e m p o r a r y c u s t o d y o f t h e c h i l d subject court On D e c e m b e r 1 4 , 2 0 0 6 , a n d a c k n o w l e d g e s t h a t , when t h e m o t h e r l e f t J.C., On court that the 2090172 c h i l d was dependent and o r d e r i n g c u s t o d y o f J.C. The mother that the c h i l d d i d not appeal remain i n the from t h e May 2007 judgment. Also child. I n December child's May 2007 p e t i t i o n , records "court to referrals" i t s judgment that not be the May man father who to show that reported she of the the mother son i m m e d i a t e a c t i o n was not support child support. noted during the that J.C.'s son might juvenile identified test. In court as child's October father; ordered the child's 2007, that a paternity test the DHR indicated however, t a k e n as a r e s u l t o f t h e p a t e r n i t y 3 three child. The initially paternity was unspecified the j u v e n i l e court indicated of the c h i l d . a completed she had p a i d child to the j u v e n i l e court J.C.'s had submitted evidence of completion of the the mother take the gave t h e mother t i m e t o she has p a i d the father of the j u v e n i l e court and t o show t h a t 2007, the issue h e l d p u r s u a n t t o J.C.'s J.C. has had c u s t o d y In on was the mother never years at a hearing o f A u g u s t 19, 2009, programs or that that 2007, custody, which apparently submit In i n May 2 0 0 7 , J . C . m o v e d f o r p e r m a n e n t c u s t o d y o f t h e no test. 2090172 In F e b r u a r y 2009, t h e m a t e r n a l "temporary" custody 8, 2009, and on J.C.'s of the c h i l d . was held on J u l y grandmother's p e t i t i o n the maternal motion grandmother p e t i t i o n e d f o r for custody the record f o r permanent before pending custody. us, i t does not appear t h a t claim A hearing before the court the mother had a m o t i o n or at that hearing, the j u v e n i l e court entered J . C . was to r e t a i n further "reserve[d] time. of the c h i l d . a child-support Ala. R. judgment. yet Jud. The an i f there After the the judgment h o l d i n g The juvenile and d i r e c t e d t h e mother that court to file affidavit (form CS-41), see R u l e 32, within Admin., days of date the 30 the of t o the r e c o r d , the j u v e n i l e c o u r t has not order mother Generally, and support" income According entered support. custody From 1 on appeals an a p p e a l i s not the a will issue of the mother's f r o m t h e A u g u s t 2009 l i e only from a f i n a l final judgment then this child judgment. judgment, court is We n o t e t h a t t h e m o t h e r was r e p r e s e n t e d b y c o u n s e l a t t h e J u l y 8, 2 0 0 9 , h e a r i n g . J.C. h a d a l s o a s k e d f o r a t e r m i n a t i o n o f t h e mother's p a r e n t a l r i g h t s ; however, the j u v e n i l e c o u r t d i s m i s s e d t h a t p o r t i o n o f t h e p e t i t i o n a n d p r o c e e d e d o n l y on t h e i s s u e r e g a r d i n g who w o u l d b e a w a r d e d p e r m a n e n t c u s t o d y o f the c h i l d . As p r e v i o u s l y n o t e d , t h e j u v e n i l e c o u r t had f o u n d t h e c h i l d t o b e d e p e n d e n t i n May 2 0 0 7 . 1 4 2090172 without jurisdiction Slate-Hamilton Although this v. was "A 518 Giardina, 925 2010). Feb. claims Carlisle Harris, In as of not final i t the So. 3d the rights v. Carlisle, Rule 506 So. Tomlinson App. 2001), this was not f i n a l 2d and 768 1003, v. 2d Ala. v. 1004 court held that f o r purposes v. 816 3d , 3 So. 3d [Ms. App. u n l e s s i t d i s p o s e s of of 977 Civ. 2d a l l parties." (Ala. Civ. P., 57, and Ex App. parte 1987)). 58 (Ala. Civ. a judgment m o d i f y i n g custody of appeal because the judgment 5 v. (Ala. Civ. ___ , ___ So. Giardina Sexton, ( A l a . C i v . App. Tomlinson, completely Phillips, Sexton 976, R. to So. liabilities So. 54(b), fails 2009] o r d e r i s g e n e r a l l y not f i n a l or that parties. Butler 2008 ) ) . " ___ appeal, 1987). i f between 2010] an Nunn is 5, support in so e v e n ex mero m o t u . " (Ala. App. judgment take 712 (citing ( A l a . 2006). the magnitude ex r e l . we 711, 2009) 642 whether such 2d issues Hamilton 640, to do (citing 2000) 2d t i m e and (Ala. Civ. "An So. 2 0 8 0 5 9 4 , D e c e m b e r 4, C i v . App. 2080852, all [Ms. appeal. address are So. a l l the so judgment adjudicate 922, final o f them a t any Baker, (Ala. d i d not matters "jurisdictional v. hear C o n n a l l y , 959 the p a r t i e s case notice to also 2090172 stated, "'Child father] shall Child Support "[t]he support be to be determined upon Income A f f i d a v i t s r e c o r d c o n t a i n [ e d ] no the c o u r t r e l a t i n g v. A n d e r s o n , paid 899 1010 final custody f o r purposes determined the of of t h e i r appeal amount the p a r t i e s of to the the the of of i n Anderson 2004), and this awarding f a t h e r was not c o u r t had not trial mother's and or o r d e r s ( A l a . C i v . App. because [the the p a r t i e s , ' " Similarly, child to submission submissions support." 2d 1008, mother] prompt (CS-41) by c o u r t h e l d t h a t a judgment d i v o r c i n g primary physical [the the further to c h i l d So. by child-support obligation. In reserved pending this case, the as in Tomlinson, i s s u e of mother's the the mother's submission Because the j u v e n i l e c o u r t has child-support final. not obligation, judgment, juvenile the of her August income 2009 duty of the Court Young v. 1008 ( q u o t i n g P o w e l l v. 1997) the 6 mother's judgment t h e a p p e a l ex mero m o t u . ' " ( A l a . C i v . App. affidavit. t h a t an o r d e r a p p e a l e d i t i s the court child-support obligation not yet d e t e r m i n e d "'When i t i s d e t e r m i n e d a final the S a n d l i n , 703 to So. is not from i s dismiss 2d 1005, Republic Nat'l 2090172 Life I n s . C o . , 293 A l a . 1 0 1 , 1 0 2 , 300 S o . 2 d 3 5 9 , 360 Accordingly, APPEAL we dismiss the mother's appeal. DISMISSED. Pittman, Bryan, Thomas, and Moore, J J . , 7 concur. (1974 ) ) .

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