Peterson v. Peterson

• Decision Date: 09 February 2007
• Docket Number: 2050491.
• Citation: 965 So.2d 1096
• Parties: Rachael Lynn PETERSON v. Alex William PETERSON III.
• Court: Alabama Court of Civil Appeals

965 So.2d 1096

Rachael Lynn PETERSON v. Alex William PETERSON III.

2050491.

Court of Civil Appeals of Alabama.

February 9, 2007.

Lawrence J. Hallett, Mobile; and Molly M. Sullivan, guardian ad litem, Mobile, for appellant.

Submitted on appellant's brief only.

BRYAN, Judge.

Rachael Lynn Peterson ("the mother") appeals a judgment of the Mobile Circuit Court deferring to the jurisdiction of the Twelfth District Court of North Carolina ("the North Carolina court") over the issues of the custody of and visitation with the two minor children ("the children") born of the marriage between the mother and Alex William Peterson III ("the father"). For the reasons discussed below, we affirm the judgment deferring to the jurisdiction of the North Carolina court and vacate all orders the Mobile Circuit Court entered awarding the mother custody, awarding the father visitation rights, and ordering the father to pay the mother monthly child support.

The record establishes the following material substantive and procedural facts. While the father and the children were residents of Alabama, the father sued the mother for a divorce in the Mobile Circuit Court.¹ However, sometime thereafter, the father moved to North Carolina.² In March 2003, the Mobile Circuit Court entered a judgment divorcing the mother and the father, awarding the father primary physical custody of the children, granting the mother visitation with the children, and ordering the mother to pay child support.

After the entry of the divorce judgment, the father took the children to North Carolina to live with him. However, the children subsequently returned to Alabama and resided with their maternal grandparents in Alabama from at least August 2003 until July 2004. In July 2004, the father came to Alabama and took the children back to North Carolina to live with him. The children have remained with the father in North Carolina since July 2004.

The mother resided in North Carolina from December 2003 until January 2005. On December 21, 2004, the mother, while she, the father, and the children were all residing in North Carolina, filed with the Mobile Circuit Court a petition seeking a modification of the divorce judgment to award her custody of the children ("the mother's petition"). In support of her petition, the mother alleged, among other things, that the father had neglected and physically abused the children. The mother also requested that the Mobile Circuit Court award her child support, award her an attorney's fee, and find the father in contempt on the ground that he had allegedly interfered with the mother's visitation with the children.

Following a hearing regarding the mother's petition, the Mobile Circuit Court, on April 26, 2005, purported to enter a default judgment against the father based on his failure to appear at the hearing. The Mobile Circuit Court found that, based on the evidence it had received at that hearing, it, rather than the North Carolina court, had jurisdiction over the issues of the children's custody and visitation. The Mobile Circuit Court purported to award the mother primary physical custody of the children and to terminate her child-support obligation. It then scheduled a future hearing regarding the father's child-support obligation and his visitation with the children. On July 5, 2005, the Mobile Circuit Court purported to amend the default judgment to add specific factual findings.

After conducting a hearing regarding the father's child-support obligation and his visitation, the Mobile Circuit Court, on August 19, 2005, purported to enter a default judgment ordering the father to pay $455.40 per month in child support and granting him visitation with the children. However, on October 3, 2005, the Mobile Circuit Court, acting ex mero motu, entered a judgment deferring to the jurisdiction of the North Carolina court over matters pertaining to the children's custody and visitation. The mother timely filed a Rule 59(e), Ala. R. Civ. P., motion challenging the judgment deferring to the jurisdiction of the North Carolina court. The mother's Rule 59(e) motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., when the Mobile Circuit Court failed to rule on it within 90 days after it was filed. The mother then timely appealed to this court.

On appeal, the mother argues that the Mobile Circuit Court erred in deferring to the jurisdiction of the North Carolina court. However, an analysis of the possible sources of the Mobile Circuit Court's subject-matter jurisdiction over the issues of custody and visitation in light of the particular facts of this case reveals that the Mobile Circuit Court did not err in deferring to the jurisdiction of the North Carolina court over those issues because the Mobile Circuit Court no longer had subject-matter jurisdiction over those issues when the mother filed her petition.³

One possible source of subject-matter jurisdiction is § 30-3B-202(a), Ala.Code 1975, which is a part of Alabama's version of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), codified at § 30-3B-101 et seq., Ala.Code 1975. Section 30-3B-202(a), Ala.Code 1975, provides:

"(a) Except as otherwise provided in Section 30-3B-204, a court of this state which has made a child custody determination consistent with Section 30-3B-201 or Section 30-3B-203 has continuing, exclusive jurisdiction over the determination until:

"(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or

"(2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state."

(Emphasis added.)

Because the Mobile Circuit Court had made the initial custody determination regarding the children in the divorce judgment consistent with § 30-3B-201, Ala. Code 1975,⁴ § 30-3B-202(a) would confer upon it continuing, exclusive jurisdiction over the mother's petition unless either subsection (1) or subsection (2) of § 30-3B-202(a) applies.

In order for § 30-3B-202(a)(2) to apply, the evidence must support a determination "that the child[ren], the child [ren]'s parents, and any person acting as a parent do not presently reside in this state." Although it appears that the Mobile Circuit Court failed to make such a determination in the case now before us, the evidence before the Mobile Circuit Court justified such a determination. Continuing, exclusive jurisdiction under § 30-3B-202(a) is determined on the basis of the circumstances existing on the date a petition seeking a modification of an Alabama court's prior custody determination is filed. See C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003). In the case now before us, the mother, the father, and the children all resided in North Carolina on the date the mother's petition was filed. Therefore, § 30-3B-202(a)(2) deprived the Mobile Circuit Court of continuing, exclusive jurisdiction to adjudicate the mother's petition unless a "person acting as a parent" resided in Alabama on the date the mother's petition was filed.

Section 30-3B-102(13), Ala.Code 1975, defines "person acting as a parent" as

"[a] person, other than a parent, who:

"a. Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and

"b. Has been awarded legal custody by a court or claims a right to legal custody under the law of this state."

Section 30-3B-102(14), Ala.Code 1975, defines "physical custody" as "[t]he physical care and supervision of a child."

Although the evidence established that the children were in the physical custody of their maternal grandparents for a period of six consecutive months within one year immediately before the mother's petition was filed in December 2004, there is no evidence in the record tending to establish that the maternal grandparents had been awarded legal custody or claimed a right to legal custody of the children, as required by § 30-3B-102(13)b. Cf. Patrick v. Williams, 952 So.2d 1131, 1139 (Ala.Civ.App.2006) (concluding that a maternal grandmother met the definition of a "person acting as a parent" because she had physical custody of the children and had claimed a right to their custody). Therefore, the children's maternal grandparents are not "person[s] acting as . . . parent[s]" as defined by § 30-3B-102(13). Moreover, the record does not contain any evidence establishing the existence of any other "person acting as a parent." Consequently, § 30-3B-202(a)(2) deprived the Mobile Circuit Court of continuing, exclusive jurisdiction over the mother's petition. See C.J.L. v. M.W.B., 868 So.2d at 453 (concluding that § 30-3B-202(a)(2) deprived the trial court of continuing, exclusive jurisdiction over the proceeding because the parents and the children no longer resided in Alabama).

Section 30-3B-202(b), Ala.Code 1975, provides that "[a] court of this state which has made a child custody determination and does not have continuing, exclusive jurisdiction under [§ 30-3B-202(a)] may modify that determination only if it has jurisdiction to make an initial determination under Section 30-3B-201."⁵ As discussed in footnote 4, supra, § 30-3B-201 conferred upon the Mobile Circuit Court jurisdiction to make the initial custody determination in the divorce judgment. However, in the case now before us, Alabama was not the home state of the children on the date the mother's petition was filed. Section 30-3B-102(7), Ala.Code 1975, defines "home state" as "[t]he state in which a child lived with a parent or a person acting as a...