Ex parte J.R.W.

Decision Date18 March 1994
Citation667 So.2d 74
PartiesEx parte J.R.W. (Re S.C. v. J.R.W.). 1921580.
CourtAlabama Supreme Court

Page 74

667 So.2d 74
Ex parte J.R.W.
(Re S.C.
v.
J.R.W.).
1921580.
Supreme Court of Alabama.
March 18, 1994.
As Modified on Denial of Rehearing
May 6, 1994.

Page 75

Petition for writ of Certiorari to the Court of Civil Appeals (AV92000128). Appeal from the Houston Circuit Court, No. DR-83-770, Denny L. Holloway, Judge.

Deborah S. Seagle of Smith & Seagle, Dothan, for petitioner.

S.C., pro se.

ALMON, Justice.

J.R.W. petitioned for a writ of certiorari to the Court of Civil Appeals, asserting that the judgment of that court conflicted with other decisions of that court and this one. The Court of Civil Appeals reversed a finding of contempt against S.C. by Judge Holloway of the Houston County Circuit Court. This Court granted J.R.W.'s petition for certiorari review. The general issue is whether the Court of Civil Appeals erred in reversing the judgment of the Houston County Circuit Court holding S.C. in contempt of its order granting J.R.W. temporary custody of his minor child K.B.W. The more narrow, dispositive questions, however, are (1) Whether a Texas protective order granting custody of K.B.W. to her stepfather S.C. and prohibiting J.R.W. from having contact with K.B.W. was contrary to the Parental Kidnapping Prevention Act of 1980, Pub.L. No. 96-611, 94 Stat. 3569 (1980) (codified at 28 U.S.C. § 1738A) (hereinafter "PKPA") and therefore was not entitled to full faith and credit and did not provide a defense to the contempt proceeding, and (2) Whether the Alabama circuit court had in personam jurisdiction over S.C. to hold him in contempt for his willful refusal to produce K.B.W. as ordered.

This appeal arises from a protracted and vigorous interstate child custody dispute between, on one side, J.R.W., the natural father of the minor child K.B.W., and, on the other side, T.P.W.C., the mother of K.B.W. and former wife of J.R.W., and her present husband S.C. This anfractuous litigation has continued with undiminished ferocity for over seven years and has involved the trial and appellate courts of both Alabama and Texas. S.C. v. J.R.W., 667 So.2d 72 (Ala.Civ.App.1993) (reversing judgment of contempt against S.C.) (being reviewed in this certiorari proceeding); T.P.W.C. v. J.R.W., 622 So.2d 931 (Ala.Civ.App.1993) (affirming judgment of contempt against T.P.W.C.); Ex parte J.R.W., 630 So.2d 447 (Ala.Civ.App.1992) (granting petition for writ of prohibition); Ex parte T.P.W.C., 601 So.2d 218 (Ala.1992) (denying summarily petition for writ of mandamus); White v. Blake, 859 S.W.2d 551 (Tex.Ct.App.1993) (denying writ of mandamus in 12-92-00401-CV; denying in part and conditionally granting in part writ of mandamus in 12-92-00400-CV; and granting conditionally writ of mandamus in 12-92-00386-CV). The history of this case is long and convoluted; therefore, we recount only those facts relevant to the issues raised in this certiorari review. 1

J.R.W. and T.P.W.C. were divorced by a judgment of the Houston County Circuit Court in 1983. Under the judgment, custody of K.B.W. was given to T.P.W.C. and J.R.W. received rights to reasonable visitation. In June 1991, the Houston County Circuit Court entered a pendente lite order, which, inter alia, granted J.R.W. unsupervised visitation with K.B.W. at specific times and ordered T.P.W.C. to deliver the child at the beginning of all visitation periods. In October 1991, without giving notice either to J.R.W. or to the court, S.C. and T.P.W.C. took K.B.W. and moved to Smith County, Texas.

In March 1992, J.R.W. filed a petition with the Houston County Circuit Court, seeking to have T.P.W.C. held in contempt for failing to comply with the June 1991 visitation order and seeking a change in custody. On June 2, 1992, the Houston County Circuit Court conducted a hearing on J.R.W.'s petition. T.P.W.C. appeared at the hearing, while S.C. apparently remained with K.B.W. in Smith County, Texas. On June 3, 1992, the Houston County Circuit Court entered an order, holding T.P.W.C. in contempt of court for failing to comply with the visitation provision of the June 1991 order and ordering her

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jailed until she complied. 2 Later the same day, T.P.W.C. was released after posting bond. On June 24, 1992, the court entered an order giving J.R.W. immediate unsupervised visitation and ordering T.P.W.C. to produce K.B.W. for this purpose.

On June 4, 1992, S.C. filed in the Smith County, Texas, District Court an application for a protective order; the application was supported by an affidavit asserting that J.R.W. had sexually abused K.B.W. and that he posed an imminent threat of physical harm to the child. After granting a temporary protective order, the Smith County District Court conducted a hearing on S.C.'s application on July 2, 1992. Accompanied by counsel, J.R.W. made a special appearance to challenge the jurisdiction of the court. After denying J.R.W.'s "motion for special appearance," see 859 S.W.2d at 556, the Texas district court received evidence presented by S.C. in support of the allegations of his application. J.R.W. did not participate in this part of the proceedings. The Texas district court subsequently entered a "protective order," prohibiting J.R.W. from going within 200 yards of K.B.W., communicating with her, or removing her from that court's jurisdiction. The "protective order" also granted exclusive custody of K.B.W. to S.C. and ordered that K.B.W. undergo psychological examination.

On July 3, 1992, J.R.W. filed in the Houston County Circuit Court a motion to add S.C. as a party to the action in Houston County; a motion to authorize and appoint a special process server to serve process on S.C. in Texas; and a motion to enjoin S.C. from interfering with J.R.W.'s "possession" of K.B.W., aiding T.P.W.C. in unlawfully concealing K.B.W., or otherwise violating the orders of the Houston County Circuit Court. On July 6, 1992, the Houston County Circuit Court entered an order granting these motions and entered ex mero motu an order amending the visitation provision of the June 24, 1992, order and ordering S.C., or any other person having "possession," to produce K.B.W. on July 20, 1992, in the event T.P.W.C. did not purge herself of contempt by producing K.B.W. This order and the other July 6, 1992, orders were served on S.C. in Smith County, Texas, on July 22, 1992.

Meanwhile, T.P.W.C., who was again in jail for contempt of court, petitioned the Houston County Circuit Court for a writ of habeas corpus on July 6, 1992, arguing that she was due to be released because the protective order entered by the Smith County District Court made her unable to purge herself of contempt, by awarding exclusive custody of K.B.W. to S.C.; J.R.W. filed a pleading in opposition to this habeas petition, arguing, inter alia, that the protective order of the Smith County District Court was invalid because, he said, the Texas district court lacked "subject matter" jurisdiction under the PKPA because of the Houston County Circuit Court's continuing exercise of jurisdiction over the action. The Houston County Circuit Court denied T.P.W.C.'s petition for a writ of habeas corpus and, on the same day, entered an order awarding temporary custody of K.B.W. to J.R.W. and reserving jurisdiction to modify.

On July 22, 1992, S.C. was personally served in Smith County, Texas, and on August 20, 1992, the Houston County Circuit Court granted J.R.W.'s petition for rule nisi requesting that S.C. be ordered to appear and show cause why he should not be held in contempt for failing to produce K.B.W. The circuit court's August 20, 1992, order was served on S.C., and on September 16, 1992, S.C. entered a special appearance through counsel challenging the in personam jurisdiction of the court. After a hearing, the circuit court held S.C. in contempt for refusing to make K.B.W. available to J.R.W. in compliance with the court's orders. The circuit court ordered S.C. to serve five days in jail and imposed a fine of $100. The circuit court also awarded $1,500 in attorney fees to J.R.W.

S.C. appealed pro se to the Alabama Court of Civil Appeals, arguing, inter alia, that the circuit court had erred in holding him in

Page 77

contempt because, he said, under the Texas district court's "protective order" he could not legally give "possession" of the child to J.R.W. and because, he said, the Alabama circuit court did not have in personam jurisdiction to hold him in contempt of court. The Court of Civil Appeals agreed and reversed the contempt judgment, holding that the Texas district court had jurisdiction under § 1738A(c)(2)(C) of the PKPA to enter its order and that the Alabama circuit court had not had in personam jurisdiction over S.C.

We note initially that the inability of a party to obey a court order is ordinarily a defense to a charge of contempt. Hill v. Hill, 562 So.2d 255 (Ala.Civ.App.1990); Ex parte Jefferson County Dep't of Human Resources, 555 So.2d 1075 (Ala.Civ.App.1989), cert. denied, 555 So.2d 1077 (Ala.1990); Thompson v. Thompson, 521 So.2d 46 (Ala.Civ.App.1988).

The contentions of the parties do not concern the correctness of any factual finding on which the circuit court based its judgment of contempt; rather, the issues raised here are legal. In his petition, J.R.W. basically contends that the Texas district court was prohibited by the PKPA from entering its "protective order" and therefore that its order is not entitled to full faith and credit under the PKPA and, not being entitled to full faith and...

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