Alabama Appellate Procedure – Void Order

This case presents a juicy issue about whether long-term residence with grandparents is enough to overcome the McLendon presumption. The Court of Appeals in Roux v. Hamby, Case No. 2030852 (Ala. Civ. App. June 3, 2005) ruled quite properly, however, that the issue was not properly before it, so we’ll have to wait for resolution.

The issue is child custody. In a prior divorce when the child was six, the court had awarded joint custody to the mother and the father, with the father named primary physical custodian and the mother awarded standard visitation. The father lived in the home of the paternal grandparents, and the paternal grandparents had cared for the child.

A year or so later, the paternal grandparents filed for custody, stating in their petition that that the father was suffering from cancer that was unresponsive to treatment, that the mother was unfit, and that they were acting in loco parentis (in the place of parents) for the child. The mother counterclaimed for custody. The trial court awarded temporary custody to the paternal grandparents.

Shortly after the trial court’s ruling, the father died. The court appointed a guardian ad litem for the child, who recommended that the paternal grandparents be awarded custody. The trial court awarded custody to the paternal grandparents and ordered the attorneys for both parties (the mother and the paternal grandparents) to submit proposals for visitation for the mother.

The mother filed an appeal, but also submitted a proposed visitation schedule to the trial court. The appellate court was in the process of dismissing her appeal because the trial court’s order was not yet final (but hadn’t yet done so), when the mother filed an application for rehearing with the trial court. The trial court responded to the application for rehearing by issuing a supplemental order awarding the mother visitation, and it is that supplemental order that the Court of Appeals had before it.

The Court of Appeals dismissed the appeal on the grounds that, because it had not yet dismissed the appeal when the trial court ruled, subject matter jurisdiction lay with the Court of Appeals rather than the trial court. This meant that the trial court’s supplemental order was void. Because “a void order will not support an appeal,” (Veteto v. Yocum, 792 So. 2d 1117, 1119 (Ala. Civ. App. 2001)), the Court of Appeals dismissed the appeal.

The moral of this story is that sequence really does matter. In her haste to cover all bases, the mother ended up wasting a great deal of time and money. Now, presumably, the trial court will issue a new supplemental order after it receives subject matter jurisdiction (presumably awarding custody to the paternal grandparents), and the mother will have a new chance to file yet another appeal. If it does, and if she does, maybe we’ll find out how to deal with that juicy issue.

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