A.J.D. v. K.A.W. (Ex parte K.W.)

• Citation: 293 So.3d 930
• Decision Date: 16 August 2019
• Docket Number: 2180697
• Parties: EX PARTE K.W. (In re: A.J.D. v. K.A.W.)
• Court: Alabama Court of Civil Appeals

293 So.3d 930

EX PARTE K.W.

(In re: A.J.D.

v.K.A.W.)

2180697

Court of Civil Appeals of Alabama.

August 16, 2019

Austin Burdick of Burdick Law Firm, Bessemer, for petitioner.

Submitted on mandamus petition only.

THOMPSON, Presiding Judge.

K.W. ("the mother")¹ petitions this court for a writ of mandamus directing the Jefferson Juvenile Court ("the juvenile court") to vacate the juvenile court's May 17, 2019, order that, among other things, denied the mother's motion to dismiss filed in case no. CS-06-1957.06 ("the .06 action") and to enter an order dismissing that action. Additionally, the mother seeks mandamus relief directing the juvenile court to vacate any order or judgment entered after February 1, 2017, in a related action involving the same parties, case no. CS–06-1957.04 ("the .04 action"), which the juvenile court purported to consolidate with the .06 action. Both the .04 action and the .06 action involve disputes between the mother and A.J.D. ("the father") concerning the custody of, specifically the father's visitation with, their child ("the child"). The mother asserts that, under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30–3B-101 et seq., Ala. Code 1975, the juvenile court lacked subject-matter jurisdiction to entertain the .06 action and to enter any orders in the .04 action after it had entered a judgment dismissing that action on February 1, 2017,² from which neither party appealed. On May 31, 2019, pursuant to Rule 21(b), Ala. R. App. P., this court called for answers to the petition to be filed, but none was received from the respondent juvenile-court judge or from the father. Therefore, in assessing the merits of the mother's petition, this court will "take the averments of fact in the ... petition as true." Ex parte Allison, 238 So. 3d 1260, 1262 (Ala. Civ. App. 2017) (citing Ex parte Turner, 840 So. 2d 132, 135 (Ala. 2002) ).

The petition and the materials the mother submitted to this court in support of her petition indicate the following. According to the petition, the mother and the father never married. The mother asserts that the father's paternity was established in 2006 and that he was ordered to pay child support of $304 each month at that time, but there are no court orders to that effect in the materials submitted to us. It appears that the paternity and child-support action in the juvenile court was designated case no. CS-06-1957.³

In the petition, the mother asserts that the father served an "extended period" in prison and that he was unemployed at the time his child-support obligation was established. Included in the materials submitted to this court is a motion in which the mother stated that on September 16, 2008, the juvenile court entered an order directing the father to pay $129 each month toward a child-support arrearage that had accrued. There are no documents in the materials before us demonstrating that an action was filed to establish the father's arrearage. Also, the September 16, 2008, order is not included in the materials. However, the action resulting in the September 16, 2008, judgment was apparently designated as case no. CS-06-1957.02.

In 2009 the mother and the child moved to Atlanta, Georgia, where they still reside. In January 2015, the father filed a petition in the juvenile court seeking visitation with the child. That petition was designated as case no. CS-06-1957.03 ("the .03 action"). According to the mother, the petition in the .03 action was dismissed because the father failed to timely serve the mother.

On June 10, 2016, the father, appearing pro se, filed a second petition in the juvenile court seeking visitation with the child. That petition was designated as case no. CS-06-1957.04 ("the .04 action"). When that petition was filed, the father resided in Birmingham and, as mentioned, the mother and the child were living in Atlanta.

On November 18, 2016, the mother filed a petition in the juvenile court for a rule nisi and for modification of the father's child-support obligation. Although it is not entirely clear from the materials before us, it appears that the juvenile court designated the mother's petition as case no. CS-06-1957.05 ("the .05 action"). In her petition, the mother alleged that, as of November 4, 2016, the father's child-support arrearage was $55,052.28. Furthermore, the mother alleged, the father had obtained employment since the entry of the 2006 judgment originally establishing child support. Therefore, she said, a material change in circumstances had occurred warranting a modification of his monthly child-support obligation.

On February 1, 2017, the juvenile court entered the following judgment, apparently addressing both the .04 action and .05 action:

"The child and mother are both residents of the State of Georgia, Fulton County, and this court lacks jurisdiction to hear the [father's] petition for visitation and the [mother's] petition for modification and Rule Nisi. Issue of jurisdiction was invoked by the [mother]. Parties ordered to seek relief in Fulton County, Georgia. Cases dismissed, remove from docket."

Neither party appealed that February 1, 2017, judgment, and this court will not reach the merits of that judgment.⁴ On February 2, 2017, the Alabama Department of Human Resources ("DHR") filed a motion and a separate petition to intervene in the action regarding child support -- i.e., the .05 action. However, both the motion and the petition are designated as having been filed in the .04 action. From the materials submitted to us, we cannot discern how or if the juvenile court disposed of DHR's request.

On February 15, 2017, the guardian ad litem for the child filed a motion to alter, amend, or vacate the February 1, 2017, judgment, arguing that the juvenile court still retained jurisdiction. That postjudgment motion was denied by operation of law on March 1, 2017. See Rule 59.1, Ala. R. Civ. P ; Rule 1(B), Ala. R. Juv. P. At that point, the juvenile court no longer had jurisdiction over the parties' claims in the .04 action and the .05 action. See H.C. v. S.L., 251 So. 3d 793, 794 (Ala. Civ. App. 2017) (once a postjudgment motion has been denied by operation of law, the juvenile court loses jurisdiction over the matter).

Despite the February 1, 2017, judgment and its explicit instruction that the parties were to seek relief in a Georgia court, the father continued to file in the juvenile court petitions or motions related to visitation with the child. The materials submitted to us indicate that on June 19, 2018, the juvenile court entered a judgment referring to a June 13, 2018, trial.⁵ In that judgment, among other things, the juvenile court purported to "grant[ the father] relief pertaining to visitation with the minor child" and established a visitation schedule. On June 29, 2018, the mother, appearing pro se, filed in the juvenile court a motion to "change venue," in which she argued, as she had previously, that the juvenile court did not have jurisdiction to decide the issues of visitation.

On October 3, 2018, the father filed in the juvenile court a petition to hold the mother in contempt for failing to allow visitation as ordered in the June 19, 2018, judgment. That petition was designated as case no. CS-06-1957.06--i.e., the .06 action. On February 19, 2019, the juvenile court entered an order, purportedly in the .04 action that had already been dismissed, setting forth the times when the father was to have visitation and establishing guidelines for the father to follow when the child was visiting with him. In the order, the juvenile court purported to consolidate the .04 action with the .06 action and set a hearing for May 17, 2019. The mother was directed to bring the child to that hearing.

The mother filed a second motion to "change venue" on March 5, 2019, and she requested that the February 19, 2019, order be set aside. The mother again asserted that the juvenile court did not have jurisdiction over issues concerning visitation with the child. On March 22, 2019, the mother, for the first time represented by counsel, filed a motion to dismiss. On May 17, 2019, the juvenile court entered an order that, among other things, denied the mother's motions to "change venue" and to dismiss.

"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. SeeEx 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)...."

Ex parte Gallant, 221 So. 3d 1120, 1122–23 (Ala. Civ. App. 2016).⁶

In her petition for a writ of mandamus, the mother relies on §§ 30-3B-201 and 30-3B-202, Ala. Code 1975, of the UCCJEA, to support her contention that the juvenile court does not have jurisdiction to determine the father's visitation rights with the child. In the petition, the mother asserts that an Alabama court has not made an initial custody determination between the parties. However, this court has determined that an award of support to one parent constitutes an implicit award of custody...