Davis v. Davis

• Decision Date: 24 July 2020
• Docket Number: 2190220
• Citation: 317 So.3d 47
• Court: Alabama Court of Civil Appeals
• Parties: Aimee Blythe DAVIS v. Scott Anthony DAVIS

317 So.3d 47

Aimee Blythe DAVIS

v.Scott Anthony DAVIS

2190220

Court of Civil Appeals of Alabama.

July 24, 2020

Aimee Davis, appellant, pro se.

Submitted on appellant's brief only.

EDWARDS, Judge.

In November 2018, Scott Anthony Davis ("the father") filed a complaint seeking a divorce from Aimee Blythe Davis ("the mother") in the General Sessions Court for Wilson County, Tennessee ("the Tennessee court"). The mother filed an answer and moved for pendente lite support and temporary custody of the parties’ children in the Tennessee court. The Tennessee court entered a pendente lite order establishing visitation between the father and the parties’ children on January 27, 2019.

Meanwhile, on January 22, 2019, the mother filed in the Baldwin Circuit Court ("the trial court") a complaint seeking a divorce from the father. In February and March 2019, the mother filed in the trial court motions seeking an award of temporary custody of the parties’ children, an award of child support, and an award of spousal support.¹ On April 18, 2019, the father, acting pro se, filed in the trial court a motion to dismiss the mother's action for lack of jurisdiction based on his argument that the Tennessee court had jurisdiction over the divorce and all associated issues.

After being notified of the existence of the divorce action in the Tennessee court, the Alabama court, in compliance with Ala. Code 1975, § 30-3B-110 and § 30-3B-206(b), communicated via telephone conference with the Tennessee court on two occasions to resolve the dispute regarding jurisdiction over the divorce, child custody, and support obligations. Both conferences with the Tennessee court were transcribed and are a part of the record on appeal. After the conferences with the Tennessee court, the trial court, on June 4, 2019, denied the father's motion to dismiss, in part, and set the matter for a trial. On August 27, 2019, the trial court entered an order explaining that it had jurisdiction over the child-custody issue.

The trial court held a trial on August 27, 2019. Both the mother and the father appeared pro se at trial. After brief questioning, the trial court stated on the record that the mother would receive "principal physical custody" and that the parents would share joint legal custody.

In its judgment, the trial court awarded the parties joint legal custody and awarded the mother sole physical custody of the parties’ children, subject to the father's visitation. The visitation provisions of the final custody judgment awarded the father visitation during alternating school breaks after the conclusion of the school week before the break until 6:00 p.m. on the Sunday before school is scheduled to resume on Monday. Similarly, the custody judgment awarded the father certain alternating holiday weekends like Easter weekend, Memorial Day weekend, and Labor Day weekend, from the day the children's school recesses until 6:00 p.m. on the Sunday or Monday before school resumes on Monday or Tuesday, depending on the holiday. The custody judgment makes the party "receiving" the children responsible for the transportation of the children to and from visitation; that is, the father is responsible for the cost of transporting the children to Tennessee for visitation and the mother is responsible for the cost of transporting the children back to Alabama. Finally, the custody judgment contains a "morality clause," which prohibits either party from having unrelated guests of the opposite sex present overnight or after midnight in their respective homes or any place that they might be staying during the time the children are present.

The mother filed two timely postjudgment motions directed to the custody judgment. She also filed a request to be awarded an attorney fee. In her first postjudgment motion, which was verified, she challenged the trial court's conclusion that it lacked jurisdiction over the child-support issue; the mother attached to her first postjudgment motion documents that, she said, could establish that the trial court had personal jurisdiction over the father to establish child support pursuant to Alabama's version of the Uniform Interstate Family Support Act ("the UIFSA"), codified at Ala. Code 1975, § 30-3D-101 et seq. In her second postjudgment motion, which was not verified, the mother complained that the trial court should amend the judgment to make the father responsible for the cost of transporting the children both to and from visitations, that it should amend its judgment to make the time for the conclusion of the father's visitation at an earlier hour than 6:00 p.m. so as to prevent the children from traveling late at night and arriving at their Spanish Fort home well after midnight on Monday or Tuesday mornings when they would have to attend school; and that it should delete the morality clause. After a brief hearing, at which the trial court explained that it would not hear new evidence from the mother, the trial court denied the mother's postjudgment motions and her request for an attorney fee on October 29, 2019, and the mother then timely filed a notice of appeal to this court.

As noted above, the mother and the father appeared pro se at the August 27, 2019, trial. The trial court asked questions of the parties, who were not, as far as the record indicates, sworn.² Neither party presented documentary or testimonial evidence regarding the parenting of the children, and neither party conducted an examination of the other party. When questioned by the trial court, the father stated that he did not desire to have custody and that he desired to be awarded visitation. When asked if there might be a reason that the trial court should not award the father visitation as set out in its "out-of-town parenting schedule," the mother commented that the father had left the children, who at the time of trial were ages 13 and 17, unattended and that the father had upset the children by engaging in a "road rage" incident involving the father's "chasing down a vehicle" and by causing a scene at a restaurant by having "altercations with managers." The further details of those incidents do not appear in the record. The mother also complained that the older child would have to work 20 hours a week as part of a co-op program at her high school and that visitation with the father would interfere with her employment. The father indicated that the children did not return his telephone calls but that he would be willing to work with the older child regarding her work schedule.

On appeal, the mother makes several arguments. She first complains that the trial court erred in concluding that the temporary or pendente lite order entered by the Tennessee court was "appropriate." She also contends that the trial court erred in concluding that it lacked jurisdiction under the UIFSA to award child support. The mother also specifically challenges the trial court's failure to amend the judgment as she requested in her second postjudgment motion to require the father to be responsible for the transportation costs related to visitation, to adjust the father's visitation so that the children could be returned home earlier, and to remove the morality clause. Finally, the mother complains that the trial court erred when it denied her request to be awarded an attorney fee.

The mother's first argument pertains to the trial court's decision to delay ruling on the jurisdictional issue until after the mother completed a contempt sentence imposed by the Tennessee court for her failure to abide by the pendente lite order entered by the Tennessee court. The mother argues that the Tennessee court lacked jurisdiction under Alabama's version of the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"),³ codified at Ala. Code 1975, § 30-3B-101 et seq., to enter the pendente lite order and therefore that the trial court erred by recognizing the Tennessee court's order as valid and by requiring her to serve the sentence of contempt imposed by the Tennessee court before deciding the jurisdictional issue presented to the trial court. The mother candidly admits that "there is no specific relief that can correct the err[or] of law or undo the injury that the [mother] suffered as a result of serving 10 days in jail [pursuant to the contempt judgment of the Tennessee court]," which suggests that the issue presented by the mother is moot.

"It is a well-settled principle of appellate review that this Court will not decide questions that are moot or that have become purely academic. It is not the province of [an appellate court] to resolve an issue unless a proper resolution would afford a party some relief." Kirby v. City of Anniston, 720 So. 2d 887, 889 (Ala. 1998). The mother has served her sentence of contempt in Tennessee, and we are unable to provide her any form of relief from the Tennessee court's contempt order. This particular issue is moot, and we will not entertain it further.

The mother next challenges the trial court's conclusion that it lacked personal jurisdiction over the father to adjudicate the issue of child support. As our supreme court has stated:

"This Court set forth the standard of review applicable to such a claim in Elliott v. Van Kleef, 830 So. 2d 726, 729 (Ala. 2002) : ‘An appellate court considers de novo a trial court's judgment on a party's motion to dismiss for lack of personal jurisdiction.’ Moreover, this Court has also stated that the plaintiff carries the burden of proving the trial court's personal jurisdiction over the defendant. Ex parte Covington Pike Dodge, Inc., 904 So. 2d 226, 229 (Ala. 2004)."

Vista Land & Equip., L.L.C. v. Computer Programs & Sys., Inc., 953 So. 2d 1170, 1174 (Ala. 2006).

The mother argues first that the trial court had personal jurisdiction over the father based on the fact that he was personally served by a process server in Tennessee and, she says, based on the fact that he has had the appropriate minimum contacts with Alabama to...