Hensley v. Kanizai

• Decision Date: 11 October 2013
• Docket Number: 2120459.
• Citation: 143 So.3d 186
• Parties: James Thomas HENSLEY v. Dennis KANIZAI and Vanessa Kanizai, Intervenors.
• Court: Alabama Court of Civil Appeals

143 So.3d 186

James Thomas HENSLEY

v.Dennis KANIZAI and Vanessa Kanizai, Intervenors.

2120459.

Court of Civil Appeals of Alabama.

July 26, 2013.

Rehearing Denied Oct. 11, 2013.

Christopher G. Childers, Florence, for appellant.

Submitted on appellant's brief only.

THOMAS, Judge.

The following facts appear in the pleadings and motions contained in the record on appeal. James Thomas Hensley (“the father”) and Danna Kanizai (“the mother”) were divorced by the Lauderdale Circuit Court (“the circuit court”) on October 11, 2011. Two children were born of their marriage, A.H. and J.H.; whether the mother's oldest child, R.H., is the father's biological child or was adopted by the father is in dispute. The parties' divorce judgment is not a part of the record on appeal; however, the father's petition for modification of the divorce judgment alleges that the divorce judgment incorporated the parties' settlement agreement, which did not reference R.H., A.H., or J.H. (sometimes collectively referred to as “the children”). A judgment of the Lauderdale Juvenile Court (“the juvenile court”) contained in the record confirms that the divorce judgment failed to address the custody of the children.

On July 6, 2012, the father filed a petition seeking a protection-from-abuse (“PFA”) order in the circuit court; that petition is not contained in the record on appeal. However, in that petition, which was assigned case number DR–12–391, the father alleged that the mother had endangered the children; he sought temporary custody of the children. The circuit court awarded ex parte custody of the children to the father on the same day that he filed his petition. After a trial held on July 30, 2012, the circuit court awarded the father temporary custody of the children in a PFA order, which is not contained in the record on appeal. Only A.H. and J.H. were in the father's physical custody on July 30, 2012; R.H. remained in Tennessee, where all three of the children had been living with Dennis Kanizai (“the maternal grandfather”) and Vanessa Kanizai (hereinafter referred to collectively as “the maternal grandparents”).

At some point before July 19, 2012, the maternal grandfather filed emergency petitions assigned case numbers JU–12–276.01, JU–12–277.01, and JU–12–279.01 in the juvenile court. The record does not contain the petitions, but the record indicates that the maternal grandfather sought custody of the children in those petitions. The record on appeal contains a copy of a judgment dated July 19, 2012, in which the juvenile court dismissed the juvenile-court actions.

On July 30, 2012, the father filed a petition in the circuit court seeking to amend the divorce judgment and seeking an order holding the mother in contempt for alleged violations of the PFA order. That action was assigned case number DR–11–532.01. In his petition, the father alleged that the mother abused drugs and had failed to supervise the children. He requested legal and physical custody of the children and further requested, among other things, an order requiring the mother to pay child support. The mother answered the father's petition, denying the father's allegations; she filed no other pleadings or motions.

The maternal grandparents filed a verified motion to intervene in case number DR–11–532.01 on August 6, 2012. In their verified motion to intervene, they sought an award of custody and alleged that the children were dependent. ¹ They further stated that the father had physically and mentally abused the children and that the mother “had a history of drug and alcohol abuse, and recently ha[d] engaged in neglectful, volatile[,] and dangerous behavior that pose[d] a serious risk of harm to [the children].” According to other statements in the maternal grandparents' verified motion to intervene, the children had begun living with the maternal grandparents in Tennessee in October 2010.² The maternal grandparents requested an award of “immediate temporary custody” of the children and the appointment of a guardian ad litem for the children. On August 11, 2012, the circuit court granted the maternal grandparents' motion to intervene and appointed a guardian ad litem for the children. The circuit court also set a hearing for August 27, 2012.

On August 15, 2012, the maternal grandparents filed a motion seeking a determination whether Alabama had jurisdiction over the father's action under the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), codified at Ala.Code 1975, § 30–3B–101 et seq. The maternal grandparents alleged that the children had resided in Tennessee from October 2010 until July 2012, when two of the children relocated to Alabama pursuant to the circuit court's PFA order. Thus, the maternal grandparents argued, the home state of the children at the time of the commencement of the father's action was Tennessee. SeeAla.Code 1975, §§ 30–3B–102(7) (defining “home state” as “[t]he state in which a child lived with a parent or a person acting as a parent at least six consecutive months immediately before the commencement of a child custody proceeding”), and 30–3B–201(a)(1) (providing that an Alabama court has jurisdiction to make a child-custody determination if it is the home state of the child at the time of the commencement of a child-custody proceeding). The maternal grandparents further alleged that they had filed a petition seeking emergency temporary custody of the children in Hardin County, Tennessee. Relying on § 30–3B–206(b)—which provides that when a simultaneous child-custody proceeding is pending in another state having jurisdiction pursuant to its version of the UCCJEA, a court entertaining a child-custody proceeding must stay the proceeding and communicate with the court of that other state—the maternal grandparents requested that the circuit court confer with the Tennessee court regarding its jurisdiction.

The father filed a brief in response to the maternal grandparents' motion to determine jurisdiction; in his brief, the father requested that the circuit court retain jurisdiction of the action. He conceded that the Tennessee court had awarded emergency custody of R.H. to the maternal grandparents, but he reported that the Tennessee court had “elected to stay further proceedings [regarding A.H. and J.H.] until [the] Hardin County Court [ ] confer[red] with the Lauderdale County Court in Alabama.” ³ The father argued that the circuit court had acquired temporary emergency jurisdiction over A.H. and J.H. under Ala.Code 1975, § 30–3B–204, based on its entry of the PFA order ⁴ and its continuing jurisdiction under the Parental Kidnapping Prevention Act (“the PKPA”).⁵ According to the father, Alabama was the home state of A.H. and J.H., because, he alleged, A.H. and J.H. had lived exclusively in Alabama since June 23, 2012, and had lived an equal amount of time in Alabama and Tennessee before June 23, 2012. He asserted that before June 23, 2012, A.H. and J.H. had “spent half the week with the father and the other half with the maternal grandparents.” Specifically, he contended that A.H. and J.H. had spent Monday to Friday evening with the maternal grandparents in Tennessee and Friday evening to Monday morning with him in Alabama. Finally, the father asserted that the maternal grandparents had acquiesced to the circuit court's jurisdiction by appearing and intervening in the circuit-court action to seek custody of the children and by being present at the PFA hearing.⁶

The maternal grandparents filed a responsive brief explaining the legal basis underlying their request that the circuit court transfer jurisdiction of the action to Tennessee. In that brief, the maternal grandparents alleged that, at the time the divorce judgment was entered, the children resided with them in Tennessee. Thus, according to the maternal grandparents, the children had resided “predominantly” in Tennessee for “approximately two years” and, they further argued, visits with the father in Alabama did not alter that conclusion. See§ 30–3B–102(7) (stating that “[a] period of temporary absence of the child ... is part of the [six-month] period” used to determine the home state of a child). Based on that argument, they contended in the circuit court that Tennessee is the home state of the children. Although they conceded that the circuit court had exercised temporary emergency jurisdiction over the children's custody in the PFA action under § 30–3B–204(b), they argued that only the Tennessee court could exercise jurisdiction under the UCCJEA to enter a final child-custody determination. The maternal grandparents later filed a motion to dismiss the father's action, to which they attached some documents that, they claimed, established that the children had attended school in Tennessee for the past two years; however, those documents did not include any information establishing the name of the school the children attended or the location at which the children attended school.

On January 24, 2013, the circuit court entered an order granting the maternal grandparents' motion and dismissing the action without including any findings of fact or legal conclusions to support its determination that it lacked subject-matter jurisdiction under the UCCJEA. The circuit court stated in its order that it had considered only arguments of counsel and the motions and briefs the parties had filed in ruling on the maternal grandparents' motion. The father filed a motion to alter, amend, or vacate the judgment and requested a hearing, again arguing that the circuit court had acquired jurisdiction under the UCCJEA. The circuit court denied the father's postjudgment motion on February 28, 2013. The father timely appealed.

On appeal, the father raises three issues.⁷ He first challenges the circuit court's dismissal of his petition to amend the divorce judgment based on the conclusion that it lacked subject-matter jurisdiction under the UCCJEA. Secondly, the father...