D.T. v. W.G.
210 So. 3d 1143
Ala. Civ. App.2016Background
- In Nov. 2013 the Tuscaloosa Probate Court entered an adoption judgment approving D.T. (maternal grandmother) as adoptive parent of A.S.
- In July 2015 W.G. (paternal grandmother) filed a petition in probate court seeking grandparent visitation under Ala. Code § 26-10A-30.
- W.G. did not request issuance of a summons or serve D.T. under Rule 4(a)(1); instead she mailed the petition to D.T.’s former adoption counsel (service like Rule 5).
- The probate court held a hearing in D.T.’s absence and entered a judgment (Nov. 2, 2015) awarding visitation to W.G.
- D.T. moved to set aside the judgment, arguing lack of jurisdiction because (1) more than 30 days had passed since the adoption judgment and (2) she was not properly served; the probate court denied the motion and D.T. appealed.
- The appellate court addressed whether § 26-10A-30 limits post-adoption visitation petitions to the adoption proceeding or 30 days post-judgment, and whether Rule 4 service was required for W.G.’s petition.
Issues
| Issue | Plaintiff's Argument (W.G.) | Defendant's Argument (D.T.) | Held |
|---|---|---|---|
| Whether probate court lacks jurisdiction under § 26-10A-30 after 30 days post-adoption | § 26-10A-30 allows post-adoption visitation and can be raised during adoption or after; W.G. relied on ability to seek relief post-adoption | Adoption cuts off ability to seek visitation after 30 days; court lacked jurisdiction because adoption judgment was final in 2013 | Rejected. § 26-10A-30 plainly allows petitions "at any time prior to or after" adoption; court may hear petition after adoption judgment |
| Whether W.G.’s filing was a motion (Rule 5 service) or a petition/complaint (Rule 4 service) | The petition was corollary to the adoption and could be presented by motion; service on counsel sufficed | The filing was a new petition/complaint initiating a separate action and required Rule 4 service (summons) | Held to be a petition/complaint commencing a new action; Rule 4(a)(1) service was required |
| Whether serving D.T. by mailing to her former counsel satisfied due process / service requirements | Service on counsel under Rule 5 was adequate notice | Mailing to former counsel was not proper service under Rule 4; no summons issued | Held improper. Failure to perfect Rule 4 service deprived the court of personal jurisdiction and rendered the judgment void |
| Effect of void judgment on appealability | N/A | N/A | Because the probate-court judgment awarding visitation was void for lack of proper service/jurisdiction, it cannot support appeal; appeal dismissed |
Key Cases Cited
- Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84 (Conn. 2010) (distinguishing motions from pleadings that commence new actions)
- Donald J. v. Evna M., 81 Cal.App.3d 929 (Cal. Ct. App. 1978) (motion vs. petition distinction; motions address incidental matters)
- Farmer v. Farmer, 842 So.2d 679 (Ala. Civ. App. 2002) (Rule 4(a)(1) requires clerk-issued summons after proper filing)
- Estrada v. Redford, 855 So.2d 551 (Ala. Civ. App. 2003) (modification of existing judgment is a separate action requiring filing, fee, and service)
- Ex parte Pate, 673 So.2d 427 (Ala. 1995) (failure of proper service under Rule 4 deprives court of jurisdiction and renders judgment void)
- Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880 (Ala. 1983) (personal jurisdiction requires perfected service of process)