CHILD BORN OUT OF WEDLOCK - NAME CHANGE - DUE PROCESS - SECOND MOTION TO VACATE - C.M. CA. V. J.L. CR.
C.M. Ca. v. J.L. Cr., [Ms. 2160212, Aug. 18, 2017] __ So. 3d __ (Ala. Civ. App. 2017). In this plurality decision by Judge Moore (Thomas, J. concurs, Donaldson, J. concurs specially, and Thompson, P.J. and Pittman, J., dissenting), the court reverses the circuit court’s granting of the father’s petition to change the name of a minor child born out of wedlock. The circuit court had granted the name change after considering briefs by the parties but did not afford the parties an opportunity to present oral argument or evidence, although the mother filed a motion for same.
Noting that “Alabama, as a common law state, recognizes the rule that a child born out of wedlock shall bear the surname of the mother,” the plurality opinion recognized “the mother had an interest in preserving the surname of the child, which interest was entitled to protection.” Ms. *7. The opinion continued
To construe § 26-17-636(e) to allow a trial court to change a child’s surname over the objection of the mother without affording the mother a full evidentiary hearing would render that statute in violation of the due-process rights of the mother. We therefore conclude that a full evidentiary hearing is required whenever a request to change the surname of a child is made under § 26-17-636(e).
The opinion rejected the father’s argument that the mother’s second motion to vacate the judgment filed in the circuit court was a nullity because it was filed after the first motion to vacate was denied. In rejecting this argument, the opinion relied on settled law that
Because the motion to vacate the judgment asserting the deprivation of the mother’s due-process rights raised different grounds than the initial motion to vacate and was filed within 30 days of the entry of the trial court’s final judgment, that motion was properly before the trial court. See, e.g., Roden v. Roden, 937 So. 2d 83, 85 (Ala. Civ. App. 2006) (“Rule 59.1[, Ala. Code 1975,] has been held to apply separately to each distinct timely filed postjudgment motion so as to afford the trial court a full 90-day period to rule on each separate motion.”); compare Curry v. Curry, 962 So. 2d 261, 264 (Ala. Civ. App. 2007) (“[I]f a party files a postjudgment motion that neither (1) requests relief on grounds different from or additional to the grounds asserted in a previous postjudgment motion so as to amount to a proper amendment to the earlier motion, nor (2) seeks different postjudgment relief so as to be a separate postjudgment motion, the second filed motion is not due to be treated as a separate motion but as a mere repetitive filing.”).
Ms. *4, n. 1.