L.B.S. v. M.W.S.
| Decision Date | 19 February 2021 |
| Docket Number | 2200091 |
| Citation | 333 So.3d 681 |
| Parties | EX PARTE L.B.S. (In re: L.B.S. v. M.W.S.) |
| Court | Alabama Court of Civil Appeals |
Stephen W. Williams of Foxtrot Family Law, Guntersville, for petitioner.
Jacqueline O. Morrette of The Morrette Firm, LLC, Trussville, for respondent.
L.B.S. ("the mother") petitions this court for a writ of mandamus directing the Blount Circuit Court to vacate its September 15, 2020, order allowing the Blount County Department of Human Resources ("DHR") to intervene in a child-custody dispute between the mother and M.W.S. ("the father"). For the reasons set forth below, we deny the mother's petition.
The materials submitted to this court indicate the following. On September 26, 2016, the Blount Circuit Court entered a judgment divorcing the mother and the father; insofar as it presided over the parties' divorce action or any subsequent action involving the modification of the custody award in the parties' divorce judgment, the Blount Circuit Court is hereinafter referred to as "the divorce court." In the divorce judgment, the mother was awarded sole custody of the parties' only child ("the child"), subject to the father's visitation. The child was almost four years old at the time of the divorce. The parties subsequently agreed to a custody modification, which the divorce court approved, awarding the mother and the father joint legal custody; the mother retained sole physical custody, and the father was awarded standard visitation.
On September 5, 2018 -- nearly two years after the mother and the father divorced -- DHR filed a petition in the Blount Juvenile Court ("the juvenile court") asserting that the child was dependent. On September 12, 2018, the juvenile court entered a temporary order awarding the father sole physical custody of the child pending a further order of that court. On June 20, 2019, the father filed a verified petition in the divorce court seeking to modify the custody award established in the divorce action. In the petition, the father asserted that, because the juvenile court had awarded him "temporary sole physical custody" of the child in the dependency action, there had been a material change of circumstances warranting a modification of the child's custody.
On June 24, 2019, the day before the trial was scheduled in the dependency action, the father filed motions either to consolidate the dependency action and the modification action or to transfer the modification action to the juvenile court. The juvenile court entered an order granting the motion to consolidate, to which the mother did not object. After a two-day trial, a single judgment was entered in both the dependency action and the modification action awarding the father sole physical custody of the child. DHR was ordered to maintain an open case regarding the child pending further order of the court. The judgment included a future trial date "solely on the issues of child support and child support arrearage," thus indicating that the judgment was not final as to the modification action.
The juvenile court's judgment, insofar as it addressed the dependency action, was appealed to this court, which entered an order transferring the case to the Blount Circuit Court for a trial de novo. All the Blount Circuit Court judges recused themselves from the matter, and our supreme court appointed a circuit judge from Marshall County to hear the dependency action; insofar as it is presiding over the trial de novo in the dependency action, the Blount Circuit Court is hereinafter referred to as "the circuit court." The dependency action remains pending in the circuit court.
On September 15, 2020, DHR filed in the divorce court a motion to intervene in the modification action. In its motion, DHR asserted that the mother had appealed from the juvenile court's judgment insofar as it pertained to the dependency action, but not insofar as it pertained to the modification action, which, DHR said, remained pending. DHR also noted that the two cases were no longer consolidated because the dependency action had to be tried before a different judge than the judge who had previously presided over the trial of the dependency and modification actions. In the motion to intervene, DHR asserted that it was a "vital and interested party" in the modification action, stating that it had "very real concerns that unless it is a party to the modification action, the previous findings of [the juvenile court], i.e., that custody should be awarded to the father, and the mother allowed supervised visitation, may be changed/modified by the parties prior to a final order being entered."
The divorce court granted DHR's motion to intervene in the modification action on September 15, 2020. On October 27, 2020, the mother timely filed the petition for a writ of mandamus asking this court to direct the divorce court to vacate the September 15, 2020, order.
A writ of mandamus "is an extraordinary and drastic writ" that we will issue "only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked." Ex parte Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000). "Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion." Id.
In seeking the writ, the mother challenges the divorce court's jurisdiction over the modification action in which DHR's motion to intervene was granted. She asserts that, because a trial de novo must be held in the separate dependency action, the intervention of DHR in the modification action will result in the divorce court's hearing the same claims by the same parties as will be heard by the circuit court in the trial de novo in the dependency action. The mother maintains that such parallel proceedings are impermissible. However, this court rejected an argument similar to the mother's argument in Winford v. Winford, 139 So. 3d 179 (Ala. Civ. App. 2013), a case with a similar procedural history.
In Winford, the mother and the father were divorced, and the mother had sole physical custody of their children. Several years after the parties' divorce, the mother's parents filed petitions in a juvenile court alleging that the children were dependent and seeking custody of the children. While the dependency petitions were pending, the father filed a petition for a modification of custody in a circuit court, alleging a material change of circumstances because, he said, the mother had abdicated her parenting responsibilities to the maternal grandparents. Id. at 180.
As in this case, the mother in Winford argued that the circuit court did not have jurisdiction to consider the custody-modification action while the dependency petitions were pending in the juvenile court. This court held that, although the juvenile court had original and exclusive jurisdiction over the dependency petitions, it "shared concurrent jurisdiction over child custody with the [circuit] court, which had continuing subject-matter jurisdiction of the child-custody dispute between the parents based on its resolution of custody issues in the parents' divorce judgment." Id. at 183. This court wrote that, "in the absence of a conflicting judgment from the juvenile court entered on the basis of a dependency finding, the [circuit] court was not deprived of its continuing jurisdiction to enter orders pertaining to the custody dispute between the parents." Id.
The same holds true in this case. The juvenile court (and now the circuit court by appeal de novo) has exclusive jurisdiction over the dependency action; however, the juvenile court (and the circuit court by appeal) has concurrent jurisdiction with the divorce court, which has continuing subject-matter jurisdiction over the parties' custody dispute by virtue of having determined custody issues in the judgment divorcing the mother and the father. Thus, the divorce court retains its authority to enter an order regarding the father's action to modify custody.
The mother contends that DHR's intervention in the modification action converts that action into a "de facto" dependency action over which the divorce court has no jurisdiction. In support of her contention, the mother relies on A.M. v. A.K., 321 So. 3d 1278 (Ala. Civ. App. 2020), which discussed an exception to a circuit court's continuing jurisdiction over custody matters decided pursuant to a divorce -- namely, that, " ‘in the event a genuine dispute between a parent and a third party arises as to the dependency of the child, the juvenile court assumes exclusive jurisdiction to adjudicate that dispute.’ " 321 So. 3d at 1281 (quoting P.S.R. v. C.L.P., 67 So. 3d 917, 922 (Ala. Civ. App. 2011) ).
It is well settled that a circuit court lacks original subject-matter jurisdiction to adjudicate the custody of a child in a proceeding in which the child has been alleged to be dependent. P.S.R., 67 So. 3d at 922. In A.M., this court held that courts must look to the substance of a pleading to determine whether it alleges the dependency of a child so as to invoke the exclusive jurisdiction of a juvenile court. In A.M., the mother had been awarded sole physical custody of her child when she and the father divorced. The mother died, and a maternal aunt sought custody of the child in the circuit court, alleging that the child's father was unfit to parent the child because he had been incarcerated after being convicted of a felony assault on the mother in the presence of the child, that he had failed to financially support the child, and that his relationship with the child had become strained. This court determined that the maternal aunt's petition was, in fact, a dependency petition and that, therefore, the circuit court lacked subject-matter...
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