M.G. v. J.T.
2012 Ala. Civ. App. LEXIS 45
Ala. Civ. App.2012Background
- M.G. appeals a Cullman Juvenile Court judgment declaring B.T. dependent and awarding custody to J.T., the child’s stepmother.
- Stepmother filed a dependency petition on Oct 24, 2011 alleging father’s death, drugs around the mother’s home, nonpayment of child support, limited visitation, and the child’s residence with the stepmother since age 5.
- The juvenile court held an Oct 27, 2011 hearing, found the child dependent, and ordered stepmother to have full custody and related authority.
- Mother was served Oct 31, 2011, filed a pro se custody request and later a motion to vacate for lack of jurisdiction.
- The juvenile court later vacated a December 1, 2011 order due to the mother’s appeal, and the mother filed a notice of appeal on Nov 14, 2011.
- The court dismissed the appeal as void due to lack of notice/hearing, stating the judgment was entered in a manner inconsistent with due process and instructing the juvenile court to vacate the void judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the October 27, 2011 judgment was void for due process violations. | Mother argues lack of notice/hearing and no adjudicatory hearing. | Stepmother contends proper proceedings were followed. | Judgment void for due process; appeal dismissed with instructions to vacate. |
| Whether ex parte communications and GAL investigation issues were preserved for review. | Arguments raised for first time on appeal should be considered. | Issues not raised in trial court should be waived on appeal. | Cannot consider these arguments; they were not preserved. |
| Whether the appeal should be dismissed due to void judgment preventing appellate review. | Void judgment supports vacatur and dismissal of the appeal. | — | Appeal dismissed with instructions to vacate the void judgment. |
Key Cases Cited
- Frahn v. Greyling Realization Corp., 239 Ala. 580 (Ala. 1940) (due process requires notice and opportunity to be heard)
- Neal v. Neal, 856 So.2d 766 (Ala. 2002) (judgment void when due-process requirements unmet)
- Ex parte R.W., 41 So.3d 800 (Ala.Civ.App. 2009) (due process in juvenile proceedings includes notice and hearing)
- S.K. v. Madison Cnty. Dep’t of Human Res., 990 So.2d 887 (Ala.Civ.App. 2008) (limits on appellate review of trial-conduct arguments)
- M.H. v. Jer. W., 51 So.3d 334 (Ala.Civ.App. 2010) (analysis of void judgments in context of juvenile dependency)
- Jones v. Sears Roebuck & Co., 342 So.2d 16 (Ala. 1977) (void judgments not subject to appeal)