Rel: March 3, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________
CL-2022-0927
_________________________
J.A. f/k/a J.A.H.
v.
C.G.H. and M.C.H.
Appeal from Jefferson Probate Court
(18BHM01915)
THOMPSON, Presiding Judge.
On August 13, 2018, C.G.H. ("the maternal great-uncle") and
M.C.H. ("the maternal great-aunt") filed in the Jefferson Probate Court
("the probate court") a petition seeking to adopt E.G.S. ("the child"), who
was born in May 2009. In their petition, the maternal great-aunt and
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great-uncle alleged that the child had been living in their home since
March 1, 2018. They also asserted that, pursuant to a 2015 judgment of
the Jefferson Juvenile Court, the child's maternal grandmother, M.W.
("the maternal grandmother"), had been awarded custody of the child.
The petition did not contain an explanation indicating why the child no
longer lived with the maternal grandmother. On September 4, 2018, the
probate court entered an order awarding custody of the child to the
maternal great-aunt and great-uncle.
On March 12, 2019, the probate court made an entry on the "docket
entry listing" for the adoption action stating that the petition for the
adoption was granted but that a final judgment would not be entered
until the probate court "receive[d] all of the missing paperwork, which
includes proof of service to both birth parents at their [last known
address], an affidavit perfecting service," and a response by the Jefferson
County Department of Human Resources. On May 1, 2019, the probate
court entered a judgment granting the adoption petition.
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Thereafter, on July 11, 2019, the child's mother, J.A. ("the
mother"), 1 filed in the probate court a verified motion seeking to set aside
the May 1, 2019, adoption judgment; in that motion, the mother alleged
that she had not been provided adequate notice of the adoption action,
and, therefore, that the May 1, 2019, adoption judgment was void.
Although the mother titled her motion "motion to set aside," because of
the nature of the arguments asserted in the mother's July 11, 2019,
motion, that motion was, in substance, a motion filed pursuant to Rule
60(b)(4), Ala. R. Civ. P. See C.S. v. J.B., 305 So. 3d 243, 246 (Ala. Civ.
App. 2020) ("We begin by observing that the father's motions, because
they challenge service of process and seek a determination that the
adoption judgments are void for lack of proper service of process, are
motions filed pursuant to Rule 60(b)(4)[, Ala. R. Civ. P.]"); and K.M.G. v.
B.A., 73 So. 3d 708, 711 (Ala. Civ. App. 2011) (noting that the substance
of a motion, rather than its title, governs how this court interprets the
motion). The probate court received ore tenus evidence at a hearing on
February 22, 2022, on the mother's July 11, 2019, motion. On June 30,
1The mother testified that, when the child was born, her name was
J.A.H., but that she had legally changed her name to J.A. approximately
one year after the child's birth.
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2022, the probate court entered a judgment denying the mother's Rule
60(b) motion seeking relief from the adoption judgment.
The time for filing a timely notice of appeal from the denial of a
Rule 60(b) motion that seeks relief from an adoption judgment is 42 days.
J.B.M. v. J.C.M., 142 So. 3d 676, 682 (Ala. Civ. App. 2013). In that case,
this court explained:
"The plain text of § 26-10A-26(a)[, Ala. Code 1975,]
provides that an aggrieved party has 14 days to file an appeal
from the final judgment of adoption. The denial of a Rule
60(b)[, Ala. R. Civ. P.,] motion pertaining to a case governed
by the Alabama Adoption Code[, § 26-10A-1 et seq., Ala. Code
1975,] is not a final judgment of adoption from which an
appeal must be taken within 14 days. Rather, it is a separate
final judgment from which an appeal lies and to which the 14-
day prescriptive period of § 26-10A-26(a) does not apply.
Therefore, the period for filing a notice of appeal from the
denial of a Rule 60(b) motion pertaining to an adoption
proceeding before the probate court is 42 days pursuant to
Rule 4(a)(1), Ala. R. App. P.4
"_________________
"4Rule 4(a)(1), Ala. R. App. P., provides, with limited
exceptions, that a notice of appeal to this court must be filed
within 42 days of the date of the entry of the judgment
appealed from."
J.B.M. v. J.C.M., 142 So. 3d at 681-82. See also K.L.R. v. K.G.S., 264 So.
3d 65, 86 (Ala. Civ. App. 2018); and J.D. v. M.B., 226 So. 3d 706, 711 (Ala.
Civ. App. 2016).
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In this case, the mother's notice of appeal from the June 30, 2022,
judgment denying her Rule 60(b) motion was required to have been filed
by August 11, 2022, which was 42 days after the entry of that judgment.
Rule 4(a)(1), Ala. R. App. P.; J.B.M. v. J.C.M., supra; K.L.R. v. K.G.S.,
supra; J.D. v. M.B., supra. The mother did not file a notice of appeal by
that date. Rather, on August 4, 2022, within the period in which to
appeal, the mother filed in the probate court a verified motion,
purportedly pursuant to Rule 77(d), Ala. R. Civ. P., in which she sought
an order extending the time in which she could appeal the June 30, 2022,
judgment.2 In that motion, the mother's attorney stated that the mother's
2Rule 77(d), Ala. R. Civ. P., is applicable in probate courts. Ex parte
C.D., [Ms. 2210248, Nov. 18, 2022] ___ So. 3d ___, ___ (Ala. Civ. App.
2022); J.D. v. M.B., supra. This court has explained:
"The Alabama Rules of Civil Procedure 'apply to the
probate court in adoption proceedings to the extent they apply
under Section 12-13-12[, Ala. Code 1975].' § 26-10A-37, Ala.
Code 1975. Section 12-13-12, Ala. Code 1975, provides:
" 'The provisions of this code in reference to
evidence, pleading and practice, judgments and
orders in the circuit court, so far as the same are
appropriate, and the mode of obtaining evidence
by oral examination or by deposition and of
compelling the attendance of witnesses and of
enforcing orders and judgments, in the absence of
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attorney had first received notice of the June 30, 2022, judgment on July
29, 2022, which, she incorrectly stated, meant that the time for filing a
timely appeal of the June 30, 2022, judgment had already expired. In her
August 4, 2022, motion, the mother sought to be allowed until August 12,
2022, to file a timely notice of appeal. The probate court entered an order
on August 9, 2022, purporting to grant the mother's August 4, 2022,
motion and purporting to extend the time for the mother to appeal to
August 12, 2022. The mother filed her notice of appeal on August 12,
2022.
Rule 77(d) provides, in part:
"Lack of notice of the entry by the clerk does not affect the
time to appeal or relieve or authorize the court to relieve a
party for failure to appeal within the time allowed, except that
upon a showing of excusable neglect based on a failure of the
party to learn of the entry of the judgment or order the circuit
court in any action may extend the time for appeal not
exceeding thirty (30) days from the expiration of the original
time now provided for appeals in civil actions."
express provision to the contrary, are applicable to
the proceedings in the probate court.' "
J.D. v. M.B., 226 So. 3d at 708 n.2.
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Although Rule 77(d) is a mechanism for filing a timely appeal if a
party did not receive notice of the entry of a judgment, that rule does not
operate to extend a party's time for taking an appeal if the party learns
of the entry of the judgment prior to the expiration of the time for taking
a timely appeal from that judgment. Salvant v. Howell, 854 So. 2d 118,
123 (Ala. Civ. App. 2003). This court has explained:
" 'Rule 77(d), [Ala. R. Civ. P.,] exclusively,
governs the situation in which a litigant claims
that the clerk's office failed to give notice of the
entry of the trial court's judgment. Lindstrom v.
Jones, 603 So. 2d 960 (Ala. 1992). "The intent of
Rule 77(d) was to allow an out of time appeal
where fault for the untimely appeal does not lie
with the party seeking to appeal." '
"W.T.M. v. Department of Human Res., 736 So. 2d 1120, 1121
(Ala. Civ. App. 1999) (quoting Moser v. Crayton, 726 So. 2d
696, 698 (Ala. Civ. App. 1998)). This court has held that 'Rule
77(d) is not applicable when a party learns of the entry of a
judgment before the time for appeal lapses.' Salvant v.
Howell, 854 So. 2d 118, 123 (Ala. Civ. App. 2003)."
Johnson v. Emerson, 185 So. 3d 1120, 1126 (Ala. Civ. App. 2015). See also
Ex parte Thrailkill, 543 So. 2d 1201, 1202 (Ala. Civ. App. 1999).
In this case, the mother's Rule 77(d) motion states that she learned
on July 29, 2022, of the entry of the June 30, 2022, judgment denying her
Rule 60(b) motion. It appears that the mother mistakenly believed that
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she had only 14 days to appeal the June 30, 2022, judgment. However,
that mistake would not constitute excusable neglect under Rule 77(d).
"[A] litigant's miscalculation of the last day for filing a notice of appeal,
no matter how innocent or understandable, is not the kind of neglect
excused under Rule 77(d)," and, therefore, the probate court "was without
the power to grant … an extension of time to file [the] notice of appeal."
Greystone Close v. Fidelity & Guar. Ins. Co., 664 So. 2d 900, 902 (Ala.
1995).
In Smith v. Smith, 919 So. 2d 315 (Ala. Civ. App. 2005), the former
husband misread the date on which the trial court entered a
postjudgment order, and, therefore, he filed a notice of appeal that was
two days late. In his Rule 77(d) motion in that case, the former husband
argued that the date stamp was difficult to read, and, therefore, his
mistake constituted excusable neglect in determining the actual date of
the entry of the postjudgment order. The former wife cross-appealed from
the trial court's granting of the husband's Rule 77(d) motion, arguing that
Rule 77(d) did not apply to the miscalculation of a deadline to file an
appeal. This court agreed with the former wife and dismissed both the
appeal and the cross-appeal, explaining:
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" 'Rule 77(d)[, Ala. R. Civ. P.,] does not permit the trial court
to extend the time for appeal for any reason other than failure
to learn of entry of the judgment' or order from which an
appeal is taken. Deborah A. Smith & Rhonda P. Chambers,
'The Nuts and Bolts of Civil Appeals,' 56 Ala. Lawyer 304, 305
(Sept. 1995) (emphasis added). Here, counsel for the former
husband did not fail to learn of the entry of the judgment --
instead, her agent miscalculated the final date for filing a
notice of appeal based upon her unilateral interpretation of a
digit produced by a filing stamp. As our Supreme Court has
held, 'a litigant's miscalculation of the last day for filing a
notice of appeal, no matter how innocent or understandable,
is not the kind of neglect excused under Rule 77(d).' Greystone
Close v. Fidelity & Guar. Ins. Co., 664 So. 2d 900, 902 (Ala.
1995)."
Smith v. Smith, 919 So. 2d at 317.
The mother learned of the entry of the June 30, 2022, judgment
within the 42 days allowed for taking a timely appeal from that
judgment. Rule 4(a)(1); J.B.M. v. J.C.M., supra. Therefore, because the
mother learned of the entry of the June 30, 2022, judgment during the
time in which she could file a timely appeal of that judgment, Rule 77(d)
was not available to extend the time for the mother to file her notice of
appeal. Salvant v. Howell, supra. The probate court's order purporting to
allow the mother until August 12, 2022, to file a timely notice of appeal
was ineffective.
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The mother's notice of appeal was required to have been filed by
August 11, 2022, to be timely taken from the June 30, 2022, judgment.
The mother filed her notice of appeal on August 12, 2022, one day late.
"An appeal is not a vested right, but exists by the grace
of a statute or a supreme court rule and must be perfected
pursuant to the time and manner prescribed therein.
Crawford v. Ray & Pearman Lincoln Mercury, 420 So. 2d 269
(Ala. Civ. App. 1982). The time prescribed by statute for
taking an appeal is jurisdictional; therefore, an untimely
appeal must be dismissed. Holmes v. Powell, 363 So. 2d 760
(Ala. 1978); Meeks [v. State Farm Mutual Automobile Ins.
Co., 286 Ala. 513, 243 So. 2d 27 (1970)]."
Ex parte Thrailkill, 543 So. 2d at 1202. "An appeal shall be dismissed if
the notice of appeal was not timely filed to invoke the jurisdiction of the
appellate court." Rule 2(a)(1), Ala. R. App. P. Therefore, the mother's
appeal is due to be dismissed.
APPEAL DISMISSED.
Moore, Edwards, Hanson, and Fridy, JJ., concur.
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