Potts v. Vega-Lopez (Ex parte Vega-Lopez)

• Decision Date: 20 December 2019
• Docket Number: 2180831
• Parties: EX PARTE Yaditxza VEGA-LOPEZ (In re: Terry Potts v. Yaditxza Vega-Lopez)
• Court: Alabama Court of Civil Appeals

297 So.3d 1273

EX PARTE Yaditxza VEGA-LOPEZ

(In re: Terry Potts

v.Yaditxza Vega-Lopez)

2180831

Court of Civil Appeals of Alabama.

December 20, 2019

Emily Peake Mauck of Lloyd & Hogan, P.C., Birmingham, for petitioner.

Stephen P. Bussman, Fort Payne, for respondent.

On Application for Rehearing

DONALDSON, Judge.

The opinion of October 4, 2019, is withdrawn, and the following is substituted therefor.

Yaditxza Vega-Lopez ("the mother") petitions this court for a writ of mandamus directing the DeKalb Circuit Court ("the trial court") to dismiss the underlying action initiated by Terry Potts for lack of personal jurisdiction, subject-matter jurisdiction, and temporary emergency jurisdiction. Because the materials presented establish that the trial court lacks personal jurisdiction and temporary emergency jurisdiction, we grant the petition and issue the writ.

The materials submitted by the parties indicate the following. On June 10, 2019, Potts filed a verified complaint in the trial court against the mother seeking temporary and permanent custody of R.I.P. ("the child"). In the complaint, Potts alleged, in relevant part:

"1. [Potts] is over 19 years of age and a resident of DeKalb County, Alabama, having been a bona fide resident of DeKalb County, Alabama for more than six months preceding the filing of this petition.

"2. [The mother] is over 19 years of age and a resident of the state of Georgia, having been a bona fide resident of the state of Georgia for more than six months preceding the filing of this petition.

"3. [Potts] is the natural father of [the child]. [The child] resides [sic] in DeKalb County, Alabama since February, 2019. [The child] has resided in Alabama for more than 4 months of the last 6 months and Alabama is considered her ‘home state’ for custody determination.

"4. [The mother] is the natural mother of [the child].

"5. The parties were never married and no previous court orders have been entered.

"6. [Potts] is a fit and proper person to have the full care, custody, and control of the minor child. [Potts] is ready, willing, and able to take custody of the minor child and provide for the daily financial and emotional needs of the minor child.

"7. The mother was fired from 4 out of the last 5 jobs she undertook and quit 2 [sic]; her boyfriend is a felon who abuses drugs and alcohol daily; was part of an international federal drug case in Brooklyn involving many of her family; her residence is unknown but, in any event, does not have a working washer and dryer; sought pain pills and smokes marijuana; neglects [her] children and especially the child of this action; she skips and forgets to give the children their prescribed medications; has caused [another one of her children] to have a very high number of unexcused absences and tardiness; punches [another one of her children] in the face and chest causing [that child] to cry; and is otherwise unfit to have the care, custody and control of [the child].

"8. [Potts] fears for the safety of [the child if] he is not awarded temporary custody."

On June 12, 2019, the trial court entered an order granting "temporary custody" of the child to Potts. On June 24, 2019, an attorney for the mother entered a limited appearance for the sole purpose of contesting the trial court's jurisdiction in the action. On that date, the mother filed a motion to dismiss, arguing that the trial court lacked personal jurisdiction over her because the only contact she had with Alabama was that the child occasionally visited with Potts in the state. The mother also argued that the trial court lacked subject-matter jurisdiction and temporary emergency jurisdiction. In the motion, the mother asserted, among other things, that she was a resident of Georgia, that she had never resided in Alabama, that the child was born in Georgia, that the child attended day care in Georgia, and that the child had never had any contacts with Alabama until Potts had moved to the state approximately six months earlier. The mother did not contest that Potts was the natural father of the child but noted that the child's paternity had not been previously adjudicated. The mother denied any allegations that she is unfit to exercise custody of the child, that she has a boyfriend, that she was involved in a criminal case in New York, that her residence is unknown to Potts, that she sought pain pills or smoked marijuana, that she neglected or abused her children, including the child in this case, or that the child faced any danger while in her custody. The mother asserted that there was no emergency basis that would permit the trial court to exercise temporary emergency jurisdiction. The mother also asserted that a custody action regarding the child had been initiated in Georgia. On June 26, 2019, the mother filed an amendment to the motion to dismiss by adding her sworn verification of the factual assertions.

On June 26, 2019, the trial court conducted a hearing on the mother's motion to dismiss. At the hearing, the mother's attorney argued that the trial court lacked personal jurisdiction over the mother, subject-matter jurisdiction over the action, and temporary emergency jurisdiction. Specifically, the mother's attorney argued that the allegations in Potts's complaint were insufficient to establish that an emergency situation had invoked the trial court's temporary emergency jurisdiction. She also informed the trial court that a custody proceeding had been instituted in Georgia and that, if the court was assuming temporary emergency jurisdiction, the court was required to communicate with the Georgia court and set a duration for the order granting Potts "temporary" custody.

The only oral testimony presented to the trial court was from Potts. According to his testimony, Potts began residing in Alabama with the child within the first week of December 2018; he moved from Georgia to Alabama when he began dating his fiancée; the child has primarily stayed with him since the move to Alabama; and he filed the complaint at least six months after the move. Potts testified that, after he filed the complaint, he allowed the child to stay with the mother in Georgia on June 12 and 13, 2019, "[b]ecause [the mother] has threatened me before with kidnapping." Potts later testified that he had allowed the child to stay with the mother during that time on the advice of his attorney and that the advice was given because no order had been entered yet and the mother had threatened him with an allegation of kidnapping. Potts further testified that the mother lives in Georgia, that he works in a restaurant in Georgia, and that their exchanges of the child occurred in Georgia. Potts presented no testimony tending to show that the child had been abandoned or that the child was subject to being abused or neglected.

On July 3, 2019, the trial court entered an order denying the mother's motion to dismiss. In the order, the trial court found that Potts and the child had resided in Alabama for six consecutive months before the filing of the complaint and that, "[a]ccordingly, [the trial court] has jurisdiction over this custody proceeding pursuant to Ala. Code [1975,] § 30-3B-201."

On July 22, 2019, the mother filed the present petition for a writ of mandamus. This court has jurisdiction to review the mother's mandamus petition pursuant to § 12-3-10, Ala. Code 1975, and § 12–3–11, Ala. Code 1975. In her petition, the mother contends that the trial court lacked personal jurisdiction over her and subject-matter jurisdiction or temporary emergency jurisdiction in the action. Potts filed a response that addresses only the issue of the trial court's subject-matter jurisdiction to make an initial custody determination.

A petition for a writ of mandamus is an appropriate means to review the denial of the mother's motion to dismiss. See Ex Parte AutoSource Motors, LLC, 156 So. 3d 397, 402 (Ala. 2014) (mandamus review of denial of motion to dismiss for lack of personal jurisdiction); Ex parte Builders & Contractors Ass'n of Mississippi Self-Insurer's Fund, 980 So. 2d 1003, 1006 (Ala. Civ. App. 2007) (mandamus review of denial of motion to dismiss for lack of subject-matter jurisdiction). We apply the following standard of review to the mother's petition:

" ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ "

Ex parte Perfection Siding, Inc., 882 So. 2d 307, 309–10 (Ala. 2003) (quoting Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995) ).

The mother first argues that neither the pleadings nor the evidence presented at the hearing established the trial court's personal jurisdiction over her. Alabama's adoption of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), codified at § 30–3B–101 et seq., Ala. Code 1975, governs child-custody disputes involving more than one jurisdiction. Although a trial court must have subject-matter jurisdiction pursuant to § 30-3B-201, Ala. Code 1975, in order to make an initial child-custody determination, Alabama also requires that the trial court have personal jurisdiction over the affected parties. See, e.g., Ex parte Dean, 447 So. 2d 733, 735 (Ala. 1984) ; Lovell v. Costigan, 185 So. 3d 1130, 1134 (Ala. Civ. App. 2015) (holding judgment void for lack of personal jurisdiction). In Ex parte Diefenbach, 64 So. 3d 1091 (Ala. Civ. App. 2010), we observed that, although the Official Comment to § 30-3B-201 states that "[p]ersonal jurisdiction over ... a parent ... is neither necessary nor required," Alabama did not adopt the language from the Model Uniform Child Custody Jurisdiction and Enforcement Act ("the Model Act") that supports that commentary of the Model Act. We stated:

"Subsection (c) of § 201 of the Model Act provides that ‘[p]

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