Mitchell v. Mitchell

Decision Date09 June 1982
Citation437 So.2d 122
PartiesJuanita MITCHELL v. Ricky J. MITCHELL. Civ. 3084.
CourtAlabama Court of Civil Appeals

James S. Ward of Stuart & Ward, Birmingham, for appellant.

J.H. McEniry, III of McEniry, McEniry & McEniry, Bessemer, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an interstate child custody case, the issues of which being largely governed by the provisions of the Parental Kidnapping Prevention Act of 1980 (the federal act) as is now codified in 28 U.S.C. § 1738A.

Mrs. Juanita Mitchell, the defendant mother, sought a writ of habeas corpus in an Alabama circuit court in an attempt to obtain custody of the child of the parties by the enforcement of a prior judgment of a Texas court which had granted the daughter's custody to her. After an ore tenus hearing before the Alabama court on July 7, 1981, that court rendered its September 3, 1981 judgment, which made the following findings:

"The Plaintiff (father) is presently a resident of the Bessemer Division of Jefferson County, the Defendant (mother) is presently a resident of Harris County, Texas.

"The parties were married July 1977 in Houston, Texas. Shortly thereafter the parties moved to Birmingham where they resided for approximately 1 1/2 years. In the latter part of 1978 or the early part of 1979, the parties moved to Florence, AL where they lived for an additional 1 1/2 years until July 1980. At that time the parties moved to Houston, Texas where the Plaintiff went into business with the Defendant's father. In the middle of August 1980, the parties moved to a home in Houston where they resided through the month of November 1980. A child was born to the parties on November 3, 1980, and the parties separated around the middle of November 1980 with the Plaintiff returning to his parent's home in Alabama November 17, 1980.

"The Plaintiff returned to Texas with the evidence being in conflict as to whether or not that return was in December 1980 or January 1981, the Court however reconciling the conflict in the testimony to that of the Plaintiff's testimony and that was the Plaintiff returned to Houston, Texas January 6 or 7, 1981, and remained in Houston until January 18, 1981. The Plaintiff went to the Defendant's home in Houston on January 18, 1981, and although it is conflict what occurred at the time of the Plaintiffs arrival it is not controverted that the Plaintiff left the Defendant's residence with the minor child without the Defendant's permission and returned to the State of Alabama.

"Subsequently the Defendant filed for divorce in the State of Texas January 29, 1981, amended the petition for divorce March 31, 1981, service was obtained on the Plaintiff in the State of Alabama on April 21, 1981, and default was taken June 6, 1981. The Texas Court divorced the parties and granted custody of the minor child to the Defendant. Meanwhile the Plaintiff on March 13, 1981, filed a petition for custody in this Court alleging that the whereabouts of the Defendant was unknown and obtained a pendente lite order of custody on the 13th day of March, 1981, awarding care, custody, and control of the minor child to the Plaintiff.

"This is a case to be decided under the Uniform Child Custody Jurisdiction Act which passed the legislature in the regular session 1980 and the previous case decisions which are not in conflict with this act.

"The Court hereby makes the following findings of fact:

"1. That the Plaintiff and the child were residing within the State of Alabama at the time the order granting temporary custody to the Plaintiff entered on March 13, 1981, which also was the initial decree affecting custody of the minor child.

"2. That the Plaintiff and Defendant resided within the State of Texas in marital cohabitation, that the parties separated while living in Texas and that the Defendant was a resident of the State for six months and the county for 90 days prior to the filing of the petition for divorce as required by Texas law.

"3. That jurisdiction properly rests before the Texas Court in Harris County, Texas to dissolve the marriage.

"4. Although this Court has determined that Texas was the proper forum and had jurisdiction to render the Decree of divorce, it is the further finding of this Court that concurrent jurisdiction exists to determine the question of custody in that an immediate emergency to protect the child exists where the proof supports that the Defendant and her parents requested the sum of $10,000.00 in order to give custody of the minor child to the Plaintiff.

"5. That the child is in a good home and is being properly cared for and loved and that the best interest of the child would be served by awarding care, custody, and control of the child to the Plaintiff.

"IT IS, THEREFORE, ORDERED, CONSIDERED, ADJUDGED, AND DECREED AS FOLLOWS:

"1. That care, custody, and control of the minor child, Natalie Norell Mitchell, is hereby awarded to the Plaintiff Ricky J. Mitchell with visitation granted to the Defendant."

The federal act became effective on July 1, 1981, which was before the habeas corpus hearing and the final judgment in the trial court of Alabama. Hence, it applies to this case and, in any conflicting areas, takes preference over the Uniform Child Custody Jurisdiction Act as that uniform act appears in § 30-3-20, et seq., of the Code of Alabama (1975). Because of the issues here involved, we must examine and apply the federal act almost exclusively in order to properly decide the two primary questions, i.e., first, whether the Texas judgment was entitled to full faith and credit and was, therefore, required to be enforced and, second, whether the Alabama court had jurisdiction to grant custody of the child to the father. A number of issues were here argued by counsel but these two problem areas substantially and adequately cover all material matters raised.

Alabama's courts are required by the federal act to extend full faith and credit to a sister state's child custody determination, which was rendered consistently with the federal act, by enforcing the judgment according to its terms and without modification. § 1738A(a). If the Texas custody judgment comported with the federal law, the judgment must be enforced. On the other hand, if it did not conform therewith, it is not entitled to full faith and credit and it is not mandatory under that act that it be enforced. Accordingly, when confronted with an enforcement problem concerning a foreign custody judgment, the first inquiry, if raised (as was here done), should be whether the sister state had jurisdiction under any of the provisions contained in the federal act. The critical date in ascertaining such compliance, or non-compliance, is the date of the filing of the proceeding in the Texas court, January 29, 1981, not the date of the rendition of the Texas judgment. § 1738A(c)(2)(A). Pitts v. Sutter, 408 So.2d 105 (Ala.Civ.App.1981), cert. denied, 408 So.2d 114 (Ala.1982).

The federal act details when a state's child custody determination is consistent with the act. One of the conditions which is stated and defined therein and which confers jurisdiction upon a court to render an enforceable interstate custody judgment is home state status, which means, in the case of a child who is less than six months old, the state in which the baby lived from birth with his parents, a parent, or a person acting as a parent. § 1738A(b)(4) and § 1738A(c)(2)(A). Those two subsections must be read and construed together. When so done, the Texas court had jurisdiction under the provisions of the federal act because, when the proceedings were instituted in Texas, that state had been the child's home state...

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