S.J.H. v. C.J.

YATES, Judge.

C.J., a minor, petitioned the trial court to order her mother, S.J.H., to pay her college education expenses. The mother moved to dismiss the petition on the grounds that C.J. had not reached the age of majority and did not have the legal capacity to file an action; the court never ruled on that motion. After an ore tenus proceeding, the court granted the petition and ordered the mother to pay $400 per month to C.J. or, in the alternative, to pay $225 per month and to provide her with the use of an automobile. At the time of the hearing, C.J. was 18 years old; she has now reached the age of majority. On the mother’s post-trial motion, the court amended the judgment, ordering that the payments be made for a five-year period or until C.J. had completed her education, whichever occurred first. The mother appeals, arguing, among other things, that the court erred in failing to grant her motion to dismiss C. J.’s petition and in exercising jurisdiction over a claim that she says was not actionable under Alabama law.

Rulé 17(c), Ala. R. Civ. P., states: “Whenever a minor has a representative, such as a general guardian or like fiduciary, the representative may sue in the name of the mi-nor_ If a minor ... does not have a duly appointed representative, that person may sue by that person’s next friend.” C.J. did not sue by her next friend, and the court did not appoint one. Although the mother’s motion to dismiss¹ placed both C.J. and the court on notice of this deficiency in the complaint, neither took any action. Because C.J. never amended her claim to make it comply with Rule 17(c) and the trial court failed to dismiss the complaint, we reverse the judgment and remand the case for the trial court to enter an order dismissing C.J.’s petition.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ROBERTSON, P.J., and CRAWLEY, J., concur. THIGPEN and MONROE, JJ., dissent.

1 . The record indicates that the court never specifically denied the motion; the court ultimately heard and ruled on the petition and, therefore, must have deemed the motion to have been denied.