229 So. 3d 772
Ala. Civ. App.
2016

Lead Opinion

MOORE, Judge.

This appeal arises from a judgment entered by the Mobile Juvenile Court (“the juvenile court”). Because we determine that the juvenile court lacked subject-matter jurisdiction, we dismiss the appeal.

The record shows that J.J. (“the child”) was born on February 27, 2007, of a non-marital relationship between M.J. (“the father”) and L.R.S. (“the mother”). The father and the mother lived separately in Mobile and shared child-rearing responsibilities for the child until 2011, when the father moved to Utah. No custody deter- mmation regarding the child had been made before the father moved.

In 2014, the mother initiated efforts to obtain child support from the father, which culminated in a March 17, 2015, administrative order from the Utah Department of Human Services requiring the father, to pay child support retroactively to September 1, 2014. Two months later, on May 27, 2015, the father filed a petition in the juvenile court seeking to obtain sole physical and legal custody of the child. In his petition, the father alleged, among other things, that the mother had neglected the child’s educational .needs, had .abused drugs, and had abandoned the child on more than one occasion. The clerk of the juvenile court assigned the- father’s petition case number CS-15-900545. Along with his petition, the father also filed an “instanter” motion for pendente lite custody of the child, which, the juvenile court granted on June 2, 2.015.1 The mother filed an answer on December 1,2015.

The juvenile court conducted a trial on January 27, 2016, after which it entered a judgment on February 1, 201.6, awarding the father sole physical and legal custody of the child. In its judgment, the juvenile court concluded that Utah did -not have jurisdiction to enter a custody order and-that “the current action is an. initial custody determination.” The juvenile court found that custody should be awarded to. the father based on-the best interests of the child/ that the mother should be awarded scheduled visitation, and that the mother should pay the- father child sup-, port. The mother filed a postjudgment motion on February 10, 2016, which the juvenile court .denied that same day. The mother timely appealed.

In their briefs to this court, neither party has raised a question as to the subject-matter jurisdiction of the juvenile court, but this court raises the issue ex mero motu. See K.R. v. Lauderdale Cty. Dep’t of Human Res., 133 So.3d 396, 403-04 (Ala.Civ.App.2013). On August 3, 2016, this court ordered the parties to submit additional letter briefs regarding whether the juvenile court, which had not adjudi cated the child dependent, had subject-matter jurisdiction to enter its February 1, 2016, judgment. In their letter briefs, the parties- agree that the juvenile court did have subject-matter jurisdiction, but such jurisdiction cannot be conferred by consent of the parties. Patterson v. Gladwin Corp., 835 So.2d 137, 142-48 (Ala.2002), To the contrary, whether a juvenile court has sub-' ject-matter jurisdiction is exclusively a question of law for this court, L.L.M. v. J.M.T., 964 So.2d 66, 74 (Ala.Civ.App. 2007), dependent -entirely on the language of the statutes empowering the juvenile court to act. K.C.G. v. S.J.R., 46 So.3d 499, 500 (Ala.Civ.App.2010).

The assertions in the father’s petition cotild be construed as allegátions of the dependency of the child to the extent the father claimed that the mother, who was exercising sole physical and legal custody of the child at the time, see Ex parte L.E.O., 61 So.3d 1042 (Ala.2010) (holding that, in determining dependency, juvenile court should determine whether legal custodian of child is providing adequate care),' was failing to assure that the child attended school as required, see Ala. Code 1975, § 12-15-102(8)4., had abandoned the child, see Ala. Code 1975, § 12-15-102(8)5., and was abusing drugs, see Ala. Code 1975, § 12-15-102(8)8. A juvenile court has exclusive original jurisdiction over petitions alleging the dependency of a child, Ala. Code 1975, § 12—15—114(a), even when the dependency petition involves a custody dispute between parents. See T.K. v. M.G., 82 So.3d 1 (Ala.Civ.App.2011). However, in this case, the juvenile court did not find the child dependent. This court has consistently held that a juvenile court cannot use its dependency jurisdiction to dispose of the'custody of a child unless the juvehile court finds the child to be dependent, see K.C.G., 46 So.3d at 501-02 (citing, among other cases, Ex parte K.S.G., 645 So.2d 297 (Ala.Civ.App.1992), Ex parte J.R.W., 630 So.2d 447 (Ala.Civ.App.1992), E.H. v. N.L., 992 So.2d 740 (Ala.Civ.App.2008), and T.B. v. T.H., 30 So.3d 429 (Ala.Civ.App.2009)), because a juvenile court has jurisdiction only to dismiss a dependency petition if the. child at issue is not adjudicated to be dependent. See Ala. Code 1975, § 12-15-310(b). - Thus, the- juvenile court did not have the authority under § 12—15— 114(a) to enter its judgment.

■ The clerk of the juvenile court assigned the case a “CS” designation. This court has routinely treated cases with a “CS” designation as falling within the jurisdiction of the juvenile court. See, e.g., H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278-79 (Ala.Civ.App.2009); C.W.S. v. C.M.P., 99 So.3d 864, 866 n. 1 (Ala.Civ.App.2012); and R.P.M. v. P.D.A., 112 So.3d 49, 50 (Ala.Civ.App.2012). However, the “CS” designation, which is merely a classification description created by the Alabama Administrative Office of Courts (“AOC”) for administrative purposes, does not in and of itself confer jurisdiction on a juvenile court. To qualify as a “CS” case, the case must arise out of a child-support action otherwise within the statutory jurisdiction of the juvenile court. See “Child Support Uniform Filing Policies & Procedures” (issued by AOC July 2013). By statute, juvenile courts have jurisdiction to award child support in a variety of contexts, including in parentage actions, see Ala. Code 1975, § 12-15-115(a)(6), § 26-17-104, and § 26-17-636(g), in certain dependency actions, see Ala. Code 1975, § 12-15-314(e), and in actions brought under the Child Support Act of 1979, see Ala. Code 1975, § 38-10-7, but, in awarding child support in this case, the juvenile court did not rely on any of its statutory bases for doing, so. The erroneous designation of the case as a “CS” case did . not bestow subject-matter- jurisdiction on the juvenile court.

A juvenile court does have jurisdiction to decide the parentage of a child under Ala. Code 1975, § 12-15-115(a)(6), which, by reference to the Alabama Uniform Parentage Act, Ala. Code 1975, § 26-17-101 ét seq., gives the juvenile court jurisdiction to decide the custody of the subject child and to assess child support. See Ala. Code 1975, § ‘26-17-636(g>. However, in its judgment, the juvenile court determined that the paternity of the father had been previously established in the Utah 'child-support action, so it did not' adjudicate the parentage of the child. Hence, the juvenile court did not have jurisdiction to decide the custody of the child and to award child support to the father under § 12-15-115(a)(6).

The father argues that the juvenile court had subject-matter jurisdiction under Ala. Code 1975, former § 12-15-30, and Ala. Code 1975, former § 12-15-l(10)(c), a proposition to which the mother largely agrees. The legislature repealed those Code sections when it adopted the Alabama Juvenile Justice Act of 2008 (“the AJJA”), Ala. Code 1975, § 12-15-101 et seq, No similar provisions appear in the AJJA. Contrary to the father’s assertion, the AJJA does not contain any current provision that confers subject-matter jurisdiction on juvenile courts specifically to decide custody controversies between unmarried parents.

“[A] judgment entered without subject-matter jurisdiction is void, ... and ... a void judgment will not support an appeal.” K.R. v. D.H., 988 So.2d 1050, 1052 (Ala.Civ.App.2008). Therefore, we dismiss this appeal as being from a void judgment, albeit with instructions to the juvenile court to set aside its void , judgment entered on February 1, 2016.2 ;

APPEAL DISMISSED WITH INSTRUCTIONS.

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

Notes

. The record indicates that the juvenile court granted the motion solely upon a review of the verified petition of the father and that the juvenile court indicated that it would give the mother a hearing on the matter if she so requested, which she did not. Thus, the juvenile court was acting pursuant to Ala. Code 1975, § 12-15-141, which provides:

"The juvenile court may enter an ex parte order of protection or restraint on an emergency basis, without prior notice and a hearing, upon a showing of verified written or verbal evidence of abuse or neglect injurious to the health or safety of a child subject to a juvenile court proceeding.- and the likelihood that the abuse or neglect will continue unless the order is issued. If an emergency order is issued, a hearing, after notice, shall be held within 72 hours of the written evidence or the next judicial business day thereafter, to either dissolve, continue, or modify the order.”

The mother did not file a petition for a writ of •mandamus to contest the juvenile court's ex parte order, and this court cannot now consider her position that that order was not justified by the allegations in the father’s petition. See Strickland v. McClendon, 193 So.3d 740, 742 (Ala.Civ.App.2015) (holding that emergency order changing custody of child pending later trial could be reviewed only by way of a petition for a writ of mandamus). Even if the mother is- correct, the juvenile court still had subject-matter jurisdiction to enter the order. See Ex parte Butler, 972 So.2d 821, 825 (Ala.2007) ("Subject-matter jurisdiction concerns a court’s power to adjudicate a case, not the merits of the court’s decision in.the case.”); M.B. v. R.P., 3 So.3d 237, 255 (Ala.Civ.App.2008) (Moore, J., concurring in part and concurring in the result in part) (reasoning that any error juvenile court may have committed in determining that emergency situation existed that endangered the child did not affect its subject-matter jurisdiction). Nothing in our opinion should be construed as affecting the validity of that order.

. See note 1, supra.



Rehearing

On Application for Rehearing

As set forth in our opinion released on original submission, M.J. (“the father”) filed a civil action against L.R.S. (“the mother”) alleging a dispute as to the custody of J.J., the child of their nonmari-tal relationship. L.R.S. v. M.J., 229 So.3d 772, 774-75 (Ala. Civ. App. 2016). That civil action actually was-originally filed in the Mobile Circuit Court. The clerk of that court assigned the action case number “CS-2015-900545.00” and referred the case .to Judge George A. Brown, a Mobile District Court judge, who sits as the presiding judge of the Mobile Juvenile Court.1 In our opinion on original submission, this court concluded that the Mobile Juvenile Court did not have jurisdiction, over the custody dispute, and we dismissed the appeal as arising from a void judgment, with instructions to vacate the judgment. 229 So.3d at 777.

On application for rehearing, the father attaches a standing order entered by the presiding judge of the Mobile Circuit Court on January 2, 2009 (“the standing order”), which provides as follows:

“By‘ order of the Presiding Judge of the Circuit- Court of Mobile, Alabama, all custody and visitation cases in this jurisdiction that do not arise out of a divorce action of modification or a divorce judgment shall be assigned to the District Court Judge who is currently also assigned to the Juvenile Court. This is the longstanding practice in.this jurisdiction and shall continue to be handled: this way, via Circuit Court clerk assignment, pending further orders.- .The Circuit Court clerk shall accept filings in the Circuit Court civil division and assign the cases as set out herein.”2 •

The father asserts that, pursuant to the standing order, Judge Brown was.acting in his capacity as a “special appointed judge” when adjudicating the underlying custody dispute, and, thus, he says, Judge Brown entered a valid judgment and this court erred in dismissing the mother’s appeal.3

Rule 13(A), Ala. R. Jud. Admin., authorizes the presiding judge of a judicial circuit to “temporarily assign circuit or district court judges to serve either within the circuit or in district courts within the circuit.” Our supreme court has interpreted Rule 13 as permitting a-standing order providing for a district-court judge “to temporarily sit in the circuit court when needed.” Ex parte Atchley, 936 So.2d 513, 516 (Ala. 2006). When acting pursuant to such a standing order, a district-court judge acts as an ex officio circuit-court judge with' the authority to perform any judicial action within the jurisdiction of the circuit court." See Ex parte Griffith, 178 So.3d 885 (Ala. Civ. App. 2015). A judgment entered by a district-court judge when acting in an ex offi-cio capacity as a circuit-court judge pursuant to Rule Í3(A) would bé as valid as any other judgment entered by a circuit-court judge. See State ex rel. Locke v. Sweeney, 349 So.2d 1147 (Ala. 1977).

However, in this case, the standing order does not merely authorize a district-court judge to act.as an ex officio circuit-court judge “temporarily ... when needed.” Ex parte Atchley, 936 So.2d at 516. The standing order purports to assign an entire class of circuit-court cases, i.e., “all custody and visitation cases in this jurisdiction that do not arise out of a divorce action of modification or a divorce judgment,” to the “District Court Judge who is currently also assigned to- the Juvenile Court.” The -standing order further expresses the intent of the presiding judge to continue a “longstanding practice” “pending further orders.” As a practical matter, under the standing order, in the 13th Judicial Circuit, each and every child-custody and visitation case arising outside the divorce context is adjudicated by the Mobile Juvenile Court.

In promulgating Rule 13(A), pur supreme court delegated the power of judicial reassignment to the presiding judges of the various judicial circuits. Sweeney, 349 So.2d at 1148. That power comes subject to the constitutional limita-tiop that any eourt-made rule “shall not ... affect the jurisdiction of circuit and district courts.” .Amendment No. 328, § 6.11 (Art. VI, § 150, Ala. Const. 1901 (Off. Recomp.)).

“Subject-matter jurisdiction concerns a court’s power to decide certain types of cases. Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911) (‘ “By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought.” ’ (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316, 19 L.Ed. 931 (1870))). That power is derived from the Alabama Constitution and the Alabama Code. See United States v. Cotton, 535 U.S. 625, 630-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)(subject-matter jurisdiction refers to a court’s ‘statutory or constitutional power’ to adjudicate a case).”

Ex parte Seymour, 946 So.2d 536, 538 (Ala. 2006) (emphasis omitted).

In Sweeney, supra, our supreme court determined that Rule 13(A) does not violate § 6.11 in permitting a presiding circuit-court judge to reassign a district-court judge temporarily to the circuit court in order to hear a criminal case. The court specifically noted as follows:

“The jurisdiction of neither the Circuit nor the District Court of Mobile County is affected by the temporary assignment of a judge from one to the other. The jurisdiction of both courts remains the same, as does the venue of causes in either.”

349 So.2d at 1148. The holding in Sweeney does not apply here because the standing order in this case does more, than appoint the Mobile Juvenile Court judges temporarily to the Mobile Circuit Court. The standing order in this case effectively enlarges the jurisdiction of the Mobile Juvenile Court to include all nondivorce child-custody and visitation cases, even those, like the one in this case, that do not fall within the statutory jurisdiction of a juvenile court. We do not believe Rule 13(A) authorizes the standing order at issue in this case because it “affects” the jurisdiction of the Mobile Juvenile Court in a manner that violates the constitutional limitation on the judicial rule-making power, and, hence, we find the standing order to be void ab initio. See Ex parte Ward, 540 So.2d 1350 (Ala. 1988) (holding resolution and order promulgated by supreme court that violated constitutional prohibition against suspension of laws- to be void ab initio).

The father relies solely on the standing order to support his argument that Judge Brown had .the authority to enter the custody determination in the underlying case. Because we have determined that the standing order lacks any legal effect, we conclude that Judge Brown was not acting as a properly appointed circuit-court judge when he 'entered the judgment. We maintain our holding that the judgment is void for lack of subject-matter jurisdiction and that the appeal was correctly dismissed on original submission. Thus, we overrule the application for rehearing.

APPLICATION .OVERRULED.

Thompson, P.J., and Pittman, J., concur.

Donaldson, J., concurs in the result, with writing, which Thomas, J., joins.

. We take judicial notice that the Mobile Juvenile Court is a division of the Mobile District Court in the 13th Judicial District.

. Although the standing order is not a part of the appellate record, we consider its contents for' the limited purpose of deciding the jurisdictional issue before us. See Ex parte Atchley, 936 So.2d 513, 516 (Ala. 2006).

. Rule 40(a), Ala. R. App. P., provides: “A party who has not prevailed may apply for a rehearing by filing an application for rehearing.” In dismissing the mother's appeal, we ordered the Mobile Juvenile Court to vacate the judgment awarding the father custody of the child. Because our opinion adversely affected the father’s custody rights, we consider him "[a] party who has not prevailed” within the meaning of Rule 40(a).



Concurrence Opinion

DONALDSON, Judge,

concurring in the result.

In his application for rehearing,- M.J. submitted an unsigned document purporting to be a “Standing Administrative Order” of the Mobile Circuit Court.' This document was not part of the record on appeal in this case, nor was it provided in response to our order on original submission for the .parties to submit additional briefs regarding the jurisdiction of the Mobile Juvenile Court in this case. Although I would not consider or analyze the unsigned document first submitted in the application for rehearing, I - concur in overruling the application.

Thomas, J., concurs.

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