DocketNumber: 2170732; 2170733
Citation Numbers: 275 So. 3d 156
Judges: Thompson
Filed Date: 10/19/2018
Status: Precedential
Modified Date: 7/29/2022
On September 16, 2016, A.W. ("the great-aunt") and W.W. ("the great-uncle") filed in the Montgomery Juvenile Court ("the juvenile court") petitions seeking to have the two minor children of J.W. ("the father") and V.L. ("the mother") found dependent and seeking an award of custody of the children.
On March 23, 2018, the juvenile court entered judgments finding that the children were dependent, awarding joint legal custody of the children to the mother, the great-aunt, and the great-uncle, and awarding physical custody of the children to the great-aunt and the great-uncle. On April 5, 2018, the mother filed a postjudgment motion addressing both judgments, and, on the same day, she filed a single notice of appeal addressing both judgments. The mother's notice of appeal was held in abeyance until the denial by operation of law of the postjudgment motion. See Rule 59.1, Ala. R. Civ. P.; A.J. v. E.W.,
On appeal, the mother does not challenge the sufficiency of the evidence supporting the dependency findings or the custody awards. Therefore, any arguments as to those issues have been waived. Ex parte Riley,
Rather, the mother argues on appeal that the juvenile court never acquired subject-matter jurisdiction over the dependency actions because, she says, the great-aunt and the great-uncle did not pay a filing fee in either dependency action. "[Section] 12-19-70 requires the payment of filing fees or a court-approved verified statement of financial hardship at the time of filing the complaint." De-Gas, Inc. v. Midland Res.,
It is the duty of the appellant to ensure that the record on appeal contains sufficient evidence or materials to substantiate a claim that there has been error below or that a court lacks jurisdiction. S.K. v. N.B.,
The mother also argues that the juvenile court's judgments are void because of the lack of indispensable parties. The mother argues on appeal that the children's father and A.D., a maternal aunt of the children, were indispensable parties. We note that, although the record contains allegations regarding the father's circumstances and assertions that A.D. and the mother had been awarded joint legal custody of the children at some point in the past, there are no orders and there is no evidence in the record to support a conclusion that the children have a legal father or that there exists a previous custody award. The juvenile court did not receive ore tenus evidence at the hearing in these actions. Rather an attorney for the Montgomery County Department of Human Resources, a guardian ad litem, and the mother appeared before the juvenile court, and their arguments and unsworn representations to the court were transcribed. Moreover, as our supreme court has recently explained, the failure to include an indispensable party is not a jurisdictional defect. Miller v. City of Birmingham,
The mother last argues that the juvenile court erred in awarding her visitation at the discretion of the great-aunt and the great-uncle. Generally, an award of visitation to a noncustodial parent may not be entirely at the discretion of a child's custodian. Pratt v. Pratt,
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Pittman, Thomas, Moore, and Donaldson, JJ., concur.