This opinion is subject to formal revision before publication in the advance sheets of
Katherine Parker Dillard ("the mother") appeals a judgment of the Jefferson Circuit Court ("the circuit court") awarding Anthony Thomas LePore ("the father") sole physical custody of the parties' child ("the child"). Because the circuit court's judgment is void, we dismiss the appeal.
The child was born on July 24, 2006; the parties have never been married. In 2007, the Jefferson Family Court ("the juvenile court") entered a judgment that, among other things, adjudicated the child's paternity, determined custody of the child, and provided for child support. In 2012, the juvenile court entered a judgment modifying the 2007 judgment that appears to have, among other things, awarded the parties joint legal custody of the child, awarded the mother sole physical custody of the child,
In November 2014, the father filed a modification petition in the juvenile court seeking an award of "primary residential and custodial privileges." The father's action was given a ".03" case designator and was docketed as a separate action ("the.03 action"). Later that month, the parties filed a joint motion to consolidate the.02 action and the.03 action, which the juvenile court later granted. In August 2015, the father filed in both actions a "motion to modify child support" that was not given a new case designator or docketed as a separate action.
The juvenile court conducted a trial in August 2015 and thereafter rendered a written judgment. Although the style of the judgment referred only to the.02 action, the body of the judgment addressed the relief requested in each action. Specifically, the judgment dismissed the.02 action, pursuant to the mother's request at trial, and denied the relief requested by the father in the.03 action. The judgment was entered in only the.02 action on September 20, 2015. On October 1, 2015, the father filed in each action a notice of appeal to the circuit court.
After conducting a trial de novo, the circuit court entered a judgment on October 12, 2016, awarding the father sole physical custody of the child, setting forth the mother's scheduled visitation periods, and requiring the mother to pay child support. The mother filed a postjudgment motion on November 11, 2016, which the circuit court denied on December 12, 2016. The mother thereafter filed a timely notice of appeal to this court on January 23, 2017.
On appeal, the mother argues that the circuit court's award of sole physical custody to the father was erroneous and that the circuit court lacked subject-matter jurisdiction to conduct a trial de novo regarding the.03 action because the father did not file a notice of appeal from the juvenile court's judgment in that action. In response, the father contends that the mother has waived her arguments because, he says, she has failed to cite the record and relevant supporting authority and has therefore not complied with the requirements of Rule 28(a)(10), Ala. R. App. P. However, "[t]he issue of subject-matter jurisdiction is `"of such magnitude that we take notice of [it] at any time and do so even
At the outset, we note that the.02 action and the.03 action were consolidated after the parties submitted a joint motion to the juvenile court; however, "Alabama law is well settled that consolidated actions maintain their separate identities, and separate judgments are to be entered in each action."
Moreover, because a valid final judgment had not yet been entered in the.03 action at the time of the father's appeal, the circuit court lacked subject-matter jurisdiction to conduct a trial de novo regarding the issues raised in the.03 action.
"We therefore dismiss the appeal, albeit with instructions to the circuit court to vacate its void judgment and to transfer the [.03 action] back to the [juvenile] court."
APPEAL DISMISSED WITH INSTRUCTIONS.
Thompson, P.J., and Pittman and Donaldson, JJ., concur.
Moore, J., concurs in the result, without writing.