Ex Parte Rich, 2041109.

• Decision Date: 21 July 2006
• Docket Number: 2041109.
• Citation: 953 So.2d 409
• Parties: Ex parte Reta S. RICH. (In re Robert P. Bayles v. Reta S. Rich).
• Court: Alabama Court of Civil Appeals

953 So.2d 409

Ex parte Reta S. RICH (In re Robert P. Bayles v. Reta S. Rich).

2041109.

Court of Civil Appeals of Alabama.

July 21, 2006.

Certiorari Denied September 15, 2006 Alabama Supreme Court 1051608.

Dagney Johnson Walker of Crew & Howell, P.C., Birmingham, for petitioner.

Candice J. Shockley of Holliman & Shockley, Pelham, for respondent.

PITTMAN, Judge.

This proceeding involves a challenge to the retention of jurisdiction by the Shelby Circuit Court over a domestic-relations action in which the custody of a child is at issue.

The exhibits submitted to this court in this mandamus proceeding indicate the following pertinent facts. Reta S. Rich ("the wife") and Robert P. Bayles ("the husband") were married in February 2003. Cheyenne Bayles ("the child") was born to the wife in 1992. The husband apparently asserts that he "receive[d] the child into his home or otherwise openly [held] out the child as his natural child" so as to give rise to a presumption of paternity (see § 26-17-5(a)(4), Ala.Code 1975).

The wife and the husband separated in November 2004. Later that month, the husband sought and obtained an ex parte "protection from abuse" order from the Shelby Circuit Court (see generally § 30-5-1 et seq., Ala.Code 1975); that order awarded "temporary custody" of the child to the husband and set the matter for a hearing on December 9, 2004, at which time the cause was continued (and the temporary-custody order was left in effect) because the wife did not appear. The husband thereafter filed a complaint in the Shelby Circuit Court seeking a divorce from the wife. In mid-December 2004, the wife filed in a Louisiana district court a complaint seeking protection from alleged domestic abuse; although the Louisiana court initially entered a protection order, that court subsequently dismissed the wife's action after having been informed of the Shelby Circuit Court's protection-from-abuse order awarding the husband temporary custody of the child. The Shelby Circuit Court then entered orders in February 2005 and in April 2005 reaffirming its earlier protection-from-abuse order containing the temporary-custody determination; the April 2005 order specifically directed that the earlier order would remain "in full force and effect" pending a hearing (which the Shelby Circuit Court envisioned would occur in June 2005).

In July 2005, the wife filed a domestic-relations action against the husband in the Coushatta Tribal Court ("the tribal court"), a court of general jurisdiction located on Indian lands in Louisiana. The tribal court, upon receipt of the wife's complaint, entered an order on July 19, 2005, finding that the wife and the child were members of the Coushatta Tribe of Louisiana and purporting to "take jurisdiction over this Tribal matter" and to award custody of the child to the wife; in that order, the tribal court opined that the Shelby Circuit Court's order awarding temporary custody of the child to the husband had "expired by its own terms." Counsel for the wife then delivered a copy of the tribal court's order to the judge of the Shelby Circuit Court who had been assigned to hear the case after the judges who had previously been assigned to the case (and who had entered the pertinent custody orders) had recused themselves. The successor judge then entered a judgment on July 25, 2005, "recogniz[ing]" the tribal court's order and awarding custody of the child to the wife pending a "final determination" as to custody by the tribal court.¹

However, within a day after that judgment was entered, the husband filed a motion in the Shelby Circuit Court to vacate that judgment, and he later filed memoranda of law tending to support his contention that the Shelby Circuit Court had continuing primary jurisdiction to adjudicate the issue of custody of the child; the wife filed memoranda of law tending to support the proposition that the tribal court had exclusive jurisdiction. After a hearing, the Shelby Circuit Court entered an order vacating its July 25, 2005, judgment on the basis that it had "improperly applied the law pertaining to tribal jurisdiction over juvenile matters"; the Shelby Circuit Court specifically declined to recognize and give full faith and credit to the tribal court's orders, opining that the tribal court lacked jurisdiction to decide the domestic-relations issues pending before the Shelby Circuit Court. The wife timely petitioned for a writ of mandamus challenging that order, and this court called for answers to the petition and briefs from the parties.

The wife first argues that the Shelby Circuit Court lacked jurisdiction to vacate its July 25, 2005, judgment purporting to relinquish jurisdiction. However, as this court recently noted in Ex parte C.L.J., 946 So.2d 880, 887 (Ala.Civ.App. 2006), a circuit court's order that transfers jurisdiction over a child-custody matter to a tribal court constitutes a "final judgment" (citing Wilson v. Wilson, 53 Ala. App. 201, 205, 298 So.2d 622, 625 (Ala.Civ. App.1973)). Just as an order dismissing an action based on the doctrine of forum non conveniens is an appealable final judgment (C.L.J., 946 So.2d at 887 (citing Ex parte Ford Motor Credit Co., 772 So.2d 437, 439 (Ala.2000))), an order dismissing a custody action on the basis that a tribal court has exclusive jurisdiction is also a final judgment. Although a nonfinal order transferring a case from one Alabama circuit court to another Alabama circuit court is reviewable only by a petition for a writ of mandamus after the transferee court has docketed the case (see Ex parte Med-Partners, Inc., 820 So.2d 815, 821 (Ala. 2001)), Rule 59(e), Ala. R. Civ. P., affords limited jurisdiction, as here, to a circuit court allowing that court to alter, amend, or vacate a final judgment of that court terminating all judicial proceedings to be held in the Alabama state court system in a particular case. We thus conclude that MedPartners and Ex parte T.T.W., 899 So.2d 1018 (Ala.Civ.App.2004), which also involved an order transferring a case from one Alabama court to another, are not on point and that the Shelby Circuit Court, as a procedural matter, acted properly.

The wife also contends that exclusive jurisdiction over the parties' custody dispute was vested in the tribal court. However, under...