REL: March 17, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. 

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, 

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ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2022-2023

_________________________

CL-2023-0009

_________________________

Ex parte F.G.

PETITION FOR WRIT OF MANDAMUS 

(In re: P.C.

v.

F.G.)

(Jefferson Juvenile Court, Bessemer Division, JU-14-678.03)

MOORE, Judge.

F.G. ("the mother") petitions this court for a writ of mandamus 

directing the Bessemer Division of the Jefferson Juvenile Court ("the 
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2

juvenile court") to set aside its order denying her motion to dismiss a 

petition for a rule nisi filed by P.C. ("the father"). We deny the mother's 

petition.

Procedural History

On September 19, 2014, the father filed a petition in the juvenile 

court alleging that the parties' child, H.C.G. ("the child"), who was born 

on January 4, 2011, was dependent and requesting an award of custody 

of the child. The father provided separate addresses for himself and the 

mother. His petition was assigned case number JU-14-678.01 ("the .01 

action"). On November 20, 2014, the juvenile court entered a judgment 

in the .01 action that provides:

"This matter before the court on private dependent 

petition. The father was DNA tested and pursuant to 

Labcorp. COT-034690 [the father] is adjudicated the 

biological father of [the child] 99.99%. [The mother] and [the 

father] have reconciled. Therefore joint legal and physical 

custody of the minor child is vested in both parents. This 

matter is closed. Case removed from docket."

On August 29, 2015, the father filed a verified emergency petition 

for pendente lite custody. On the face of the father's August 29, 2015, 

petition appears a handwritten case number bearing the number of the 
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.01 action. In the electronic filing stamp located on the top right of the 

petition, however, the case number is listed as "68-CS-2015-900415.00"

("the CS action").1 In his petition, the father asserted, among other 

things, that the parties had separated, and he sought an award of 

pendente lite custody of the child. The juvenile court entered an order2

on September 10, 2015, that provides, in pertinent part:

"The father has petitioned this court for pendente lite 

custody.... The parties have joint custody under [the .01 

action]. The petition does not allege dependency so the matter 

shall be decided under this case number. A [guardian ad 

litem] report has been submitted and based upon the report 

and arguments of both attorneys pendente lite custody is 

vested in the mother and the father shall have visitation as 

set out in Exhibit A. This case is set for a custody trial on 

October 21, 2015." 

1"This court has routinely treated cases with a 'CS' designation as 

falling within the jurisdiction of the juvenile court." L.R.S. v. M.J., 229 

So. 3d 772, 776 (Ala. Civ. App. 2016). Thus, we presume that, whether 

the father's August 29, 2015, petition proceeded in the .01 action or in the 

CS action, it remained properly before the juvenile court at all times.

2We note that the juvenile court's September 10, 2015, order bears 

the case number of the .01 action, but the exhibit attached thereto bears 

the case number of the CS action. 
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4

Exhibit A, which was attached to the September 10, 2015, order, set out 

the terms to which the parties had agreed regarding visitation. On 

December 21, 2015, the juvenile court entered a judgment in the .01 

action indicating that the parties had represented to the court that an 

agreement had been reached and that they did not wish to proceed to 

trial. In accordance with the parties' agreement, the juvenile court 

awarded the parties joint legal custody of the child, directed that "the 

[mother] shall have the primary physical custody," specified each party's 

parenting time with the child, and declined to award either party child 

support.3

3We note that the December 21, 2015, judgment awarded the 

parties approximately equal parenting time with the child and that the 

juvenile court declined to award child support to either party because 

"both parents are custodial parents and neither parent is a non-custodial 

parent." To the extent those provisions conflict with the award of 

"primary physical custody" to the mother, we note that the resolution of 

any ambiguities in the juvenile court's December 21, 2015, judgment or 

its later judgments is not pertinent to this court's resolution of the 

mother's argument in her petition for the writ of mandamus regarding 

the denial of her motion to dismiss, and, accordingly, we decline to 

further address the same.
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On April 4, 2018, the mother filed in the juvenile court a petition to 

modify the custody of the child; that petition was assigned case number 

JU-14-678.02 ("the .02 action"). The mother sought an award of sole legal 

and sole physical custody of the child and an award of child support. On 

September 24, 2018, the juvenile court entered a judgment in the .02 

action that, among other things, maintained its award of sole physical 

custody of the child to the mother, modified the parties' parenting time 

with the child while still maintaining approximately equal amounts of 

parenting time for each party, and, again, declined to award child support 

to either party because "both parents are custodial parents and neither 

parent is a non-custodial parent." The juvenile court included additional 

provisions in its September 24, 2018, judgment regarding the parties' 

parenting of the child. 

On June 29, 2022, the father filed in the juvenile court a verified 

petition for a rule nisi, asserting, among other things, that the mother 

had denied him his custodial periods with the child in violation of the 

juvenile court's September 24, 2018, judgment. The father's petition was 

assigned case number JU-14-678.03 ("the .03 action"). On October 17, 
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2022, the mother filed a motion to dismiss the .03 action. She alleged 

that the father's September 19, 2014, petition in the .01 action did not 

sufficiently invoke the juvenile court's dependency jurisdiction, that the 

.01 action had been a custody dispute between the parties, and that, as a 

result, the juvenile court lacked subject-matter jurisdiction over the .03 

action and all previous actions between the parties. Additionally, the 

mother filed in the .01 action a motion to set aside the judgment,

pursuant to Rule 60(b)(4), Ala. R. Civ. P., based on the father's having 

failed to invoke the dependency jurisdiction of the juvenile court in his 

September 19, 2014, petition in the .01 action. On November 17, 2022, 

the juvenile court entered an order in the .03 action indicating that the 

mother's Rule 60(b)(4) challenge to the juvenile court's subject-matter 

jurisdiction over the earlier proceedings was untimely filed, and it stated 

at the close of its order "petition denied."4 On November 29, 2022, the 

4We interpret the juvenile court's November 17, 2022, order as 

denying the mother's motion to dismiss filed in the .03 action and we 

proceed to address the mother's arguments in her petition as they relate 

to that denial. We decline, however, to address the mother's argument 

that the juvenile court erred in denying her Rule 60(b)(4), Ala. R. Civ. P., 
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father filed a motion to set the .03 action for trial. On November 30, 2022, 

the juvenile court entered an order setting the case for a trial to be held 

on March 29, 2023. The mother filed her petition for the writ of 

mandamus with this court on January 9, 2023.

Timeliness of the Mother's Petition

The mother asserts in her petition before this court that the 

juvenile court's November 17, 2022, order was unclear but that, upon the 

juvenile court's filing of its November 30, 2022, order setting the case for 

a trial, the mother realized that the juvenile court intended to proceed to 

hear the father's petition for a rule nisi, thus prompting her to file her 

mandamus petition with this court. Rule 21(a)(3), Ala. R. App. P., 

indicates that a petition for the writ of mandamus "shall be filed within 

a reasonable time" and that the "presumptively reasonable time for filing 

a petition seeking review of an order of a trial court or of a lower appellate 

court shall be the same as the time for taking an appeal." In the present 

case, it appears that, in its November 17, 2022, order, the juvenile court 

motion as having been untimely filed because that motion was filed by 

the mother in the .01 action, which is not before this court. 
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implicitly denied the mother's motion to dismiss. Even assuming that 

the mother was uncertain of the effect of that order until the entry of the 

November 30, 2022, order setting the case for a trial, the reasonable time 

for filing a petition for the writ of mandamus from the latter order would 

have fallen on December 14, 2022, 14 days after the entry of the 

November 30, 2022, order. See Rule 4(a)(1), Ala. R. App. P.; Rule 21. The 

mother filed her petition with this court on January 9, 2023, well beyond 

that date. However, because the mother challenges the juvenile court's 

subject-matter jurisdiction in her mandamus petition, we may still 

consider the merits of her petition despite her failure to file her petition 

within the presumptively reasonable period prescribed by Rule 21. See

Ex parte K.W., 293 So. 3d 930, 934 n.6 (Ala. Civ. App. 2019). Accordingly, 

we proceed to consider the merits of the mother's petition.

Analysis

The mother argues that the juvenile court erred in denying her 

motion to dismiss for lack of subject-matter jurisdiction. 

"The denial of a motion to dismiss for lack of jurisdiction 

is reviewable upon a timely filed petition for a writ of 

mandamus. Ex parte Flint Constr. Co., 775 So. 2d 805, 808 
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(Ala. 2000); Drummond Co. v. Alabama Dep't of Transp., 937 

So. 2d 56, 57 (Ala. 2006). With regard to an appellate court's 

consideration of a petition for a writ of mandamus, our 

supreme court has stated:

"'This Court has consistently held that the 

writ of mandamus is an extraordinary and drastic 

writ and that a party seeking such a writ must 

meet certain criteria. We will issue the writ of 

mandamus only when (1) the petitioner has a clear 

legal right to the relief sought; (2) the respondent 

has an imperative duty to perform and has refused 

to do so; (3) the petitioner has no other adequate 

remedy; and (4) this Court's jurisdiction is 

properly invoked. Ex parte Mercury Fin. Corp., 

715 So. 2d 196, 198 (Ala. 1997). Because 

mandamus is an extraordinary remedy, the 

standard by which this Court reviews a petition for 

the writ of mandamus is to determine whether the 

trial court has clearly abused its discretion. See

Ex parte Rudolph, 515 So. 2d 704, 706 (Ala. 1987).'

"Ex parte Flint Constr. Co., 775 So. 2d at 808. In discussing 

the review of a denial of a motion to dismiss for lack of subjectmatter jurisdiction, the court further explained:

" '"In Newman v. Savas, 878 So. 2d 1147 

(Ala. 2003), this Court set out the standard of 

review of a ruling on a motion to dismiss for lack 

of subject-matter jurisdiction:

"'"'A ruling on a motion to dismiss is 

reviewed without a presumption of 

correctness. Nance v. Matthews, 622 

So. 2d 297, 299 (Ala. 1993). This Court 
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must accept the allegations of the 

complaint as true. Creola Land Dev., 

Inc. v. Bentbrooke Housing, L.L.C., 828 

So. 2d 285, 288 (Ala. 2002). 

Furthermore, in reviewing a ruling on 

a motion to dismiss we will not consider 

whether the pleader will ultimately 

prevail but whether the pleader may 

possibly prevail. Nance, 622 So. 2d at 

299.'

" '"878 So. 2d at 1148-49."'

"Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 21 (Ala. 

2007) (quoting Pontius v. State Farm Mut. Auto. Ins. Co., 915 

So. 2d 557, 563 (Ala. 2005))."

Ex parte Diefenbach, 64 So. 3d 1091, 1093 (Ala. Civ. App. 2010).

The mother argues that, because the juvenile court never 

adjudicated the child to be dependent in the .01 action, it lacked 

jurisdiction to adjudicate the child's custody in the .01 action and all 

subsequent actions. We disagree. Although the mother is correct that 

the juvenile court did not adjudicate the child dependent in response to 

the father's September 19, 2014, petition in the .01 action, the November 

20, 2014, judgment entered in the .01 action established the father's 

parentage of the child. Section 12-15-115(a)(6), Ala. Code 1975, provides, 
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in pertinent part, that a juvenile court shall exercise original jurisdiction 

of "[p]roceedings to establish parentage of a child pursuant to the 

Alabama Uniform Parentage Act, Chapter 17 of Title 26." Accordingly, 

it appears that the juvenile court was exercising its jurisdiction pursuant 

to § 12-15-115(a)(6) when it established the father's paternity of the child 

in its November 20, 2014, judgment. Based on the materials before this 

court, it does not appear that the mother has challenged the juvenile 

court's jurisdiction on that basis at any time before either the juvenile 

court or this court and there is nothing before us in the materials 

provided with the mother's mandamus petition indicating that the 

juvenile court lacked jurisdiction to adjudicate the .01 action pursuant to 

§ 12-15-115(a)(6). 

Section 12-15-115(a)(7), Ala. Code 1975, provides that a juvenile 

court shall exercise original jurisdiction of "[p]roceedings to establish, 

modify, or enforce support, visitation, or custody when a juvenile court 

previously has established parentage." Because the father's petition in 

the .03 action seeks to enforce the juvenile court's judgments regarding 

custody and visitation related to the child, whose parentage the juvenile 
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court had previously established, the juvenile court has subject-matter 

jurisdiction over the father's petition in the .03 action pursuant to § 12-

15-115(a)(7). 

The mother also implies in her mandamus petition that the father 

failed to pay a filing fee along with his August 29, 2015, petition seeking 

pendente lite custody and that, as a result, the juvenile court did not 

obtain jurisdiction over that petition. We note that the mother failed to 

raise this argument before the juvenile court and, more importantly, we 

note that neither the CS action nor the .01 action are before this court. 

Accordingly, we decline to address the mother's argument. 

Because the materials before this court do not indicate that the 

juvenile court lacks jurisdiction over the father's petition in the .03 action

and the mother has failed to show a clear legal right to the relief sought, 

we deny the mother's petition for the writ of mandamus. In light of that 

denial, the mother's motion before this court requesting a stay of the trial 

setting on the father's petition in the .03 action is denied as moot.

MOTION TO STAY DENIED; PETITION DENIED. 

Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.