Dorning v. Ortiz (Ex parte Ortiz)

• Decision Date: 05 October 2012
• Docket Number: 2110927.
• Citation: 108 So.3d 1046
• Parties: Ex parte Miguel A. ORTIZ. (In re Wendy J. Dorning v. Miguel A. Ortiz).
• Court: Alabama Court of Civil Appeals

108 So.3d 1046

Ex parte Miguel A. ORTIZ.(In re Wendy J. Dorning

v.Miguel A. Ortiz).

2110927.

Court of Civil Appeals of Alabama.

Oct. 5, 2012.

Shane M. Oncale of The Oncale Firm, P.C., Birmingham, for petitioner.

Gerald Mack Freeman, Odenville, for respondent.

MOORE, Judge.

Miguel A. Ortiz (“the father”) petitions this court for a writ of mandamus directing the Jefferson Circuit Court (“the trial court”) to vacate its May 14, 2012, order denying the father's motion to dismiss the action filed by Wendy J. Dorning (“the mother”). For the reasons stated below, we grant the petition and issue the writ.

Procedural History

On July 21, 2011, the mother filed in the trial court a petition to “annex” a foreign judgment. She submitted with that petition a certified copy of a December 17, 1998, judgment (“the Florida judgment”), entered by the Eighteenth Judicial Circuit of Seminole County, Florida (“the Florida court”). In the Florida judgment, the Florida court divorced the mother and the father; awarded the mother primary physical custody of the parties' child, M.B.O., who was born on June 29, 1993; and ordered the father to pay as child support $250 on the 1st and 15th day of each month until certain specified events occurred.

Also on July 21, 2011, the mother filed in the trial court a petition for a rule nisi, seeking to hold the father in contempt for his alleged failure to comply with the child-support provisions of the Florida judgment; the mother also sought to modify the Florida judgment to provide for post-minority educational expenses for the child, to allow the mother to claim the child as a dependent for federal and state income-tax purposes, and to require the father to pay all medical expenses of the child not covered by health insurance.

On August 8, 2011, the father, through legal counsel, filed a motion to dismiss or, alternatively, a limited appearance for the purpose of contesting the jurisdiction of the trial court. The father asserted that the trial court lacked personal jurisdiction over him; that the mother had failed to comply with the requirements for registering a foreign judgment; that, pursuant to the terms of the Florida judgment, the State of Florida had retained jurisdiction over the parties; and that the State of Florida does not recognize an obligation on the part of a divorced parent to provide post-minority educational support.

On September 30, 2011, the mother submitted an amendment to her petition to annex the Florida judgment. She submitted the parties' “Marital Settlement Agreement” that, she asserted, had been incorporated into the Florida judgment. The mother also asserted that she had fully complied with the statutory requirements for registering the Florida judgment.

The mother and the father submitted affidavits to the trial court in support of their respective positions. After an April 19, 2012, hearing on the father's motion to dismiss, the trial court denied that motion on May 14, 2012, and scheduled the case for trial. The father timely filed this petition.

Analysis

The father first argues that the trial court lacks subject-matter jurisdiction. “[S]ubject-matter jurisdiction may not be waived; a court's lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.” C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003).

“ ‘ “A writ of mandamus is an extraordinary remedy, and it ‘will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ” '

“Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). ‘[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.’ Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998). ‘Although this Court reviews a mandamus petition to determine whether the trial court exceeded its discretion, this Court reviews issues of law de novo.’ Ex parte Terry, 957 So.2d 455, 457 (Ala.2006).”

Ex parte Berry, 999 So.2d 883, 885 (Ala.2008).

The father specifically argues that the mother failed to comply with the registration requirements of § 30–3A–602, Ala.Code 1975, a part of the Uniform Interstate Family Support Act (“the UIFSA”), Ala.Code 1975, § 30–3A–101 et seq.Section 30–3A–602 of the UIFSA provides the following method for registering a foreign child-support order in a court of this state:

“(a) A support order or income-withholding order of another state may be registered in this state by sending the following documents and information to the appropriate court in this state:

“(1) a letter of transmittal to the court requesting registration and enforcement;

“(2) two copies, including one certified copy, of all orders to be registered, including any modification of an order;

“(3) a sworn statement by the party seeking registration or a certified statement by the tribunal or collection agency showing the amount of any arrearage;

“(4) the name of the obligor and, if known:

“(i) the obligor's address and Social Security number;

“(ii) the name and address of the obligor's employer and any other source of income of the obligor; and

“(iii) a description and the location of property of the obligor in this state not exempt from execution; and

“(5) the name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted.

“(b) On receipt of a request for registration, the registering court shall cause the order to be filed as a foreign judgment, together with one copy of the documents and information, regardless of their form.”

The father asserts that, when the mother filed her July 21, 2011, action seeking to register the Florida judgment and to modify that judgment, she failed to strictly comply with the procedure set forth in § 30–3A–602 because, he says, she failed to file the necessary number of copies of the Florida judgment, she failed to file copies of the complete Florida judgment, and she failed to file a sworn statement showing the amount of the alleged arrearage. We agree that the mother failed to comply with § 30–3A–602 because she failed to file a complete copy of the Florida judgment in her initial filing, see§ 30–3A–602(a)(2), and failed to include a sworn statement showing the amount of the claimed arrearage, see§ 30–3A–602(a)(3).¹

This court has held that a trial court does not obtain subject-matter jurisdiction over a petition to modify a foreign support order if it is not registered properly under the UIFSA. See S.A.T. v. E.D., 972 So.2d 804, 807 (Ala.Civ.App.2007). Only strict compliance with that registration procedure confers subject-matter jurisdiction upon an Alabama circuit court to enforce or to modify a foreign child-support judgment. See Mattes v. Mattes, 60 So.3d 887 (Ala.Civ.App.2010), and Ex parte Owens, 65 So.3d 953 (Ala.Civ.App.2010).

Because the Florida judgment was not registered in strict compliance with the UIFSA, the mother's petition for a rule nisi and for modification of the Florida judgment did not trigger the subject-matter jurisdiction of the trial court. See S.A.T., 972 So.2d at 807. The mother also could not correct that fatal deficiency in her petition by filing an amendment to that petition. See Ex parte Owens, 65 So.3d 953, 954 (Ala.Civ.App.2010) (because mother had failed to properly register foreign child-support order as required by the UIFSA, her petition for a rule nisi failed to trigger subject-matter jurisdiction of the trial court and her purported amendment to her petition, filed in an attempt to comply with those requirements, was also a nullity; upon the filing of a deficient petition, the trial court had no jurisdiction to do anything but dismiss the action). As a result, the trial court erred in denying the father's motion to dismiss for lack of subject-matter jurisdiction.

The father also contends that the trial court erred in denying his motion to dismiss the mother's action for lack of personal jurisdiction, pursuant to Ala.Code 1975, § 30–3A–201.

“ ‘[A] petition for a writ of mandamus is the proper device by which to challenge the denial of a motion to dismiss for lack of in personam jurisdiction.’ Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala.2003). ‘A petitioner may be entitled to a writ of mandamus in such a case upon a showing of a clear legal right to an order dismissing the action against it.’ Ex parte First Western Bank, 898 So.2d 701, 704 (Ala.2004). ‘ “The burden of establishing a clear legal right to the relief sought rests with the petitioner.” ’ Ex parte Dangerfield, 49 So.3d 675, 680 (Ala.2010) (quoting Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 972 (Ala.2007)).”

Ex parte McNeese Title, LLC, 82 So.3d 670, 673 (Ala.2011).

Section 30–3A–201, Ala.Code 1975, provides:

“In a proceeding to establish, enforce, or modify a support order or to determine parentage, a court of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:

“(1) the individual is personally served with summons and complaint within this state;

“(2) the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;

“(3) the individual resided with the child in this state;

“(4) the individual resided in this state and provided prenatal expenses or support for the child;

“(5) the child resides in this state as a result of the acts or directives of the individual;

“(6) the individual engaged in sexual intercourse in this state and the child may have been...