A.M.H. v. D.E.H.
|18 November 2022
|A.M.H. v. D.E.H., Jr. D.E.H., Jr. v. A.M.H.
|Alabama Court of Civil Appeals
Appeals from Marshall Circuit Court (DR-20-900419)
In October 2020, A.M.H. ("the mother") filed a petition in the Marshall Circuit Court ("the trial court") seeking to enforce and to modify the child-custody provisions of an August 2019 divorce judgment ("the Louisiana judgment") entered by the Jefferson Parish District Court in the State of Louisiana ("the Louisiana court") that, among other things, divorced her from D.E.H., Jr. ("the father"); named the mother as the designated domiciliary parent of the parties' child, D.E.H. III ("the child"); awarded the father certain visitation with the child, including visitation every other weekend from Thursday to Monday; and ordered the father to pay child support. The mother also filed in the trial court a motion seeking temporary emergency custody of the child based upon an allegation that the father had sexually abused the child. On October 8, 2020, the trial court entered an ex parte order awarding the mother temporary emergency custody and setting a pendente lite hearing for December 9, 2020.
The father, who was then represented by attorney James Hess, filed a motion to dismiss the mother's custody-modification action on October 27, 2020. In that motion, the father contested the trial court's personal
jurisdiction over him and asserted that the trial court lacked subject-matter jurisdiction to enforce or to modify the Louisiana judgment, in part because the mother had not properly registered the Louisiana judgment under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), Ala. Code 1975, § 30-3B-101 et seq. The father also incorporated into his motion to dismiss the arguments raised in a November 2017 motion to dismiss that he had previously filed in the Cullman Circuit Court in an action commenced by the mother in 2017, which motion the father attached to his motion to dismiss. The November 2017 motion to dismiss asserted that the father did not have minimum contacts with the State of Alabama, that, as a result, the Cullman Circuit Court lacked personal jurisdiction over him, and that Alabama's version of the UCCJEA required personal jurisdiction over a party in order to enter a custody determination that would bind that party. Alabama Comment to Ala. Code 1975, § 30-3B-201; Ex parte Diefenbach, 64 So.3d 1091, 1096 (Ala. Civ. App. 2010).
The trial court continued the pendente lite hearing until December 23, 2020. At that time, the father was represented by attorney Sreekanth B. Ravi, who appeared with the father at the pendente lite hearing.
When the trial court asked if any pretrial motions or issues needed to be addressed, Ravi failed to raise the father's pending motion to dismiss on the issues of personal jurisdiction and subject-matter jurisdiction. After that hearing, the trial court entered a pendente lite custody order maintaining sole physical custody of the child with the mother and permitting the father to exercise supervised visitation within Alabama on the second Sunday of each month from 2:00 p.m. to 5:00 p.m.; the mother was permitted to designate the visitation supervisor. The trial court set the action for a "further pendente lite hearing" to be held on February 17, 2021. The father filed a motion seeking reconsideration of the pendente lite order on January 6, 2021, based on concerns that the mother would choose a visitation supervisor antagonistic toward the father, but the father did not assert a personal-jurisdiction defense in that motion.
On February 18, 2021, the trial court entered a second pendente lite custody order. That order maintained sole physical custody of the child with the mother but expanded the father's visitation to the second and fourth Sunday of each month from 2:00 p.m. to 5:00 p.m. The trial court set the matter for a trial to be held in June 2021.
In March 2021, the father, still represented by Ravi, filed a motion entitled "Motion for Expedited Final Hearing and Motion to Dismiss." In that motion, the father again raised the issue of personal jurisdiction. He also asserted, without specific citation to Ala. Code 1975, § 30-3B-202, that the Louisiana court retained "continuing and exclusive" jurisdiction over the issue of custody of the child. In response to the father's motion, the trial court entered an order on March 8, 2021, stating, in pertinent part, that, "[i]f the [father] wishes the case to be dismissed or transferred to Louisiana pursuant to the UCCJEA, he shall present any relevant statute and case law in support of his position" at a hearing to be held on March 31, 2021.
On March 29, 2021, the mother filed a motion to disqualify Ravi from representing the father because Ravi had joined a law firm with which she had consulted. The trial court set the mother's motion to be heard on March 31, 2021, the same day that the father's motion to dismiss was to be heard. After the hearing on March 31, 2021, Ravi agreed to voluntarily withdraw, and the father retained attorney Brian E. Beck. Because of the motion to disqualify and the impending
withdrawal of Ravi, the trial court did not receive arguments addressed to the father's motion to dismiss at the hearing on March 31, 2021.
On April 12, 2021, the father, through Beck, requested that the trial court reschedule a hearing on the father's motion to dismiss. The trial court set the father's motion for a hearing, via Zoom, a videoconferencing service, on April 22, 2021. The order setting that hearing stated that "[b]oth counsel shall be prepared to present argument, including necessary statutory authority or caselaw, on the issue of jurisdiction."
After the April 22, 2021, hearing, the trial court entered an order denying the father's motion to dismiss. In its order, the trial court, after indicating that it had considered testimony, evidence, and arguments of counsel, specifically addressed only the issue of subject-matter jurisdiction, stating:
"Ala. Code [1975,] § 30-3B-203 dictates the process for this Court to exercise jurisdiction to modify a previous custody determination. Specifically, this Court finds that a court of this state would be a more convenient forum pursuant to Ala. Code [1975,] § 30-3B-207 and that this Court now would have jurisdiction to make an initial determination pursuant to Ala. Code [1975,] § 30-3B-201(a)(1). The [father] offered no definitive proof that the State of Louisiana continued to exercise jurisdiction over the subject-matter. Additionally, there was no evidence offered that the aforementioned statutory factors do not apply. For the Court to grant a dispositive motion, evidence (or at the very least a proffer of
evidence through argument) relevant to the applicable statute must be offered for the Court to be able to grant the relief sought.
"In denying the relief, the Court was left to decipher jurisdiction through the limited means of a review of the pleadings and consideration of the testimony offered at the emergency hearing. The … mother has exercised physical custody of the child in the State of Alabama for a period approaching three (3) years. The child, except for visiting her father, has resided exclusively in the State of Alabama for that time. Therefore, the State of Alabama would be the child's home state if this were an initial child custody proceeding. See Ala. Code [1975,] § 30-3B-201(a)(1). For determining whether or not the State of Louisiana would be an inconvenient forum, the Court reviewed and applied limited information provided at the hearing to the factors in Ala. Code [1975,] § 30-3B-207(b)."
In May 2021, the father acquired new counsel, Shane Holloway, who requested a continuance of the trial on the custody-modification petition scheduled to be held in June 2021. Neither the mother nor the guardian ad litem that had been appointed for the child objected, so the trial court continued the trial to November 2021. Also in June, the father filed a motion seeking to have the mother held in contempt for failing to permit him to visit with the child via FaceTime, a videoconferencing service, and requesting an increase in the amount of his pendente lite visitation. The trial court set the issue of pendente lite visitation for a hearing to be held in July 2021 but deferred consideration of the
contempt issue until the trial on the merits scheduled to be held in November 2021. The trial court later rescheduled the trial for August 26, 2021, and ordered that both the visitation issue and the contempt issue would be heard at that time; the trial court then rescheduled the trial on the merits from August 26, 2021, to September 23, 2021.
At the trial on September 23, 2021, the father again challenged the trial court's subject-matter jurisdiction under the UCCJEA and its personal jurisdiction over him. Counsel for the mother pointed out that the father had had several attorneys and conceded that the father had initially raised the issue of personal jurisdiction by motion; however, counsel for the mother contended that, because Ravi had never requested that the trial court consider the issue of personal jurisdiction at the December 2020 pendente lite hearing, the issue of personal jurisdiction had been waived. The trial court indicated on the record that it believed that the personal-jurisdiction argument had not been timely asserted or supported. Regarding the trial court's subject-matter jurisdiction over the mother's custody-modification action under the UCCJEA, the trial court indicated that the father had not presented at any hearing specific legal citations to statutes or caselaw or facts relevant to the
determination of subject-matter jurisdiction under the UCCJEA. However, the trial court indicated that it would reconsider "the...
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