Gallant v. Gallant (Ex parte Gallant)
| Decision Date | 21 October 2016 |
| Docket Number | 2150949 |
| Citation | 221 So.3d 1120 |
| Parties | EX PARTE Matthew GALLANT (In re Matthew Gallant v. Rebecca Gallant) |
| Court | Alabama Court of Civil Appeals |
Austin Burdick of Burdick Law Firm, Bessemer, for petitioner.
Chip Cleveland of Cleveland, Riddle & Atchison, L.L.C., Prattville, for respondent.
Matthew Gallant ("the father") has filed a petition for a writ of mandamus challenging the subject-matter jurisdiction of the Elmore Circuit Court ("the trial court").
On August 29, 2009, the trial court entered a judgment in case number DR-09-900071, divorcing the father and Rebecca Gallant ("the mother"). That judgment, which incorporated a settlement agreement entered into by the parties, awarded the mother sole physical custody of the parties' five children, subject to the father's right to visitation, awarded the parties joint legal custody of the children, and ordered the father to pay child support and other financial support to the mother. On May 5, 2012, the father filed a contempt petition, which was assigned case number DR-09-900071.01. He later amended his petition to request that the custody provisions of the divorce judgment be modified to award him sole legal and physical custody of the parties' children. In that same action, the mother filed a counterclaim seeking modification of the custody and visitation provisions of the divorce judgment, as well as a finding of contempt against the father. On February 28, 2014, the trial court entered a judgment that, among other things, awarded the mother sole legal and physical custody of the children and modified the visitation rights of the father. This court affirmed that judgment. See Gallant v. Gallant , 184 So.3d 387 (Ala. Civ. App. 2014).
On June 18, 2014, the father filed a petition alleging that the mother had contemptuously violated various provisions of the 2009 divorce judgment and seeking custody of the children. That petition was assigned case number DR–09-900071.02. On July 28, 2014, the mother filed a counterclaim, which was assigned case number DR-09-900071.03. After a trial, the trial court, on January 19, 2016, denied the father's petition and the mother's counterclaim by rendering a single judgment that was entered in both case number DR-09-900071.02 and case number DR–09- 900071.03. Neither party appealed from the judgment entered in those cases.
On June 21, 2016, the mother filed a contempt and modification complaint under case number DR-900071.03. On August 10, 2016, the father filed a motion to dismiss that contempt and modification complaint. In that motion, the father also moved the trial court to set aside the January 19, 2016, judgment entered in case number DR-09-900071.02 and in case number DR-09-900071.03 for lack of subject-matter jurisdiction. The trial court, on August 12, 2016, denied the father's motion to dismiss and his motion to set aside by rendering a single order that was entered in both case number DR-09-900071.02 and case number DR-09-900071.03. The father filed his petition for a writ of mandamus on August 30, 2016.
The father argues that the trial court erred in denying his motion to set aside the January 19, 2016, judgment, which, he asserts, is void because the trial court lacked subject-matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), Ala. Code 1975, § 30–3B–101 et seq. We conclude that the father filed his motion under Rule 60(b)(4), Ala. R. Civ. P. (). This court reviews the denial of a Rule 60(b)(4) motion by appeal and not by a petition for a writ of mandamus. Ex parte R.S.C. , 853 So.2d 228 (Ala. Civ. App. 2002). Hence, this court has elected to treat that portion of the father's petition for a writ of mandamus as an appeal, see Ex parte C.L.J. , 946 So.2d 880, 888 (Ala. Civ. App. 2006) (), and that appeal will be addressed separately.
The father also argues in his mandamus petition, on the same grounds,1 that the trial court erred in denying his motion to dismiss the contempt and modification complaint filed by the mother in case number DR-09-900071.03 on June 21, 2016. This court may review an order denying a motion to dismiss for lack of subject-matter jurisdiction under the UCCJEA via a petition for a writ of mandamus. See Ex parte Holloway , 218 So.3d 853 (Ala. Civ. App. 2016).
"A writ of mandamus is an extraordinary remedy that requires a showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court."
Ex parte McNaughton , 728 So.2d 592, 594 (Ala. 1998). This court may issue a writ of mandamus compelling a trial court to dismiss a child-custody action if the trial court lacks subject-matter jurisdiction. Ex parte Holloway , supra .
"The UCCJEA is a jurisdictional act that establishes subject-matter jurisdiction over child-custody proceedings." H.T. v. Cleburne Cty. Dep't of Human Res. , 163 So.3d 1054, 1062 (Ala. Civ. App. 2014). A "child custody proceeding" is "[a] proceeding in a court in which legal custody, physical custody, or visitation with respect to a child is an issue." Ala. Code 1975, § 30–3B–102(4). In her complaint, the mother asserts that the father is in contempt of the trial court's previous visitation orders and that the trial court should modify his visitation rights, which claims would fall under the UCCJEA. However, the mother also maintains that the father has contemptuously failed to pay child support, extracurricular fees, and attorney's fees, and she seeks modification of the trial court's previous child-support judgments. Those claims do not involve child-custody matters. See Ala. Code 1975, § 30–3B–102(3) (). Thus, we construe the father's motion to dismiss, which relies solely on the UCCJEA, as relating solely to the visitation claims made in the mother's complaint. See Ex parte Collins , 184 So.3d 1036, 1038 (Ala. Civ. App. 2015).
Under the UCCJEA, a trial court that has entered a judgment awarding a parent visitation rights with a child maintains continuing exclusive jurisdiction to modify that judgment until:
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