Lower Court Could Not Refuse to Tax Appellate Costs

The juvenile court could not refuse to order a losing appellee to pay the costs of appeal: The appellate court had ordered, and the governing rule mandated, that the appellee pay those costs when its original judgment was reversed. The Court of Civil Appeals directed the juvenile court to enter an order taxing the costs of appeal against the losing appellee. M.B. v. S.B., No. 2080464 (Ala. Civ. App. Aug. 7, 2009).

This custody modification suit was before the Court of Civil Appeals for a second time. In the previous appeal, the Court of Civil Appeals had reversed a custody modification, and taxed the costs of the appeal against the mother, as the losing appellee. When the case returned to the juvenile court, the appellants (the children’s grandparents) moved to recover the costs of appeal, pursuant to the appellate court’s mandate. The juvenile court denied that motion.

The Court of Civil Appeals ruled that this was error. The juvenile court had no discretion to deny the grandparents the costs of appeal. Rule 35(a) of the Alabama Rules of Appellate Procedure states that “if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered . . . .” Echoing this rule, the Alabama Supreme Court has held:

[A] judgment of [the appellate] Court, ordering a party to pay the cost of appeal, is final . . . . Thus, unless [the appellate] Court orders otherwise, when a judgment is reversed, costs shall be taxed against the appellee.

The juvenile court had no discretion to deny the costs that the appellate court had ordered taxed against the appellee. The Court of Civil Appeals remanded the case to the juvenile court, with a direction to enter an order taxing costs of the first appeal against the appellee mother.