Riggs v. Krukenberg (Ex parte Krukenberg)

• Decision Date: 13 October 2017
• Docket Number: 2160817
• Citation: 252 So.3d 676
• Parties: EX PARTE Noy KRUKENBERG (In re: Gwendolyn Riggs v. Noy Krukenberg)
• Court: Alabama Court of Civil Appeals

252 So.3d 676

EX PARTE Noy KRUKENBERG(In re: Gwendolyn Riggs

v.Noy Krukenberg)

2160817

Court of Civil Appeals of Alabama.

October 13, 2017

Eric B. Funderburk of Law Offices of Funderburk & Lane, Phenix City, for petitioner.

Kimberly Moody Dean of Dean & Barrett, Opelika, for respondent.

THOMAS, Judge.

Noy Krukenberg ("the mother") is the mother of two children, C.A and G.A. ("the children"). The children were born in Texas to the mother and Michael Aumock ("the father"), who were never married. In June 2012, the mother and the children moved to Alabama. In August 2012, the father's mother, Gwendolyn Riggs ("the paternal grandmother"), sought grandparent visitation in an action she commenced in the District Court of Dallas County, Texas ("the Texas court"); the Texas court awarded the paternal grandmother specific visitation with the children in a November 2013 judgment ("the Texas judgment").

In September 2014, the paternal grandmother commenced an action ("the 2014 enforcement action") in the Lee Circuit Court ("the circuit court") seeking to register and enforce the Texas judgment pursuant to Ala. Code 1975, § 30–3B–305, seeking to hold the mother in contempt of the Texas judgment, or, in the alternative, seeking grandparent visitation under Alabama law if the Texas judgment was not successfully registered. The mother did not request a hearing to contest the validity of the registration of the Texas judgment, and the registration of the Texas judgment was confirmed as a matter of law. See § 30–3B–305(e). In March 2015, the circuit court entered an order indicating that the Texas judgment had been "domesticated," indicating that the parties were to be allowed an opportunity to "perform in good faith under the terms of the Texas [judgment] during spring break and summer 2015," and ordering the parties to provide a status update by September 1, 2015.

After a hearing in the 2014 enforcement action, the circuit court entered a judgment on December 23, 2015 ("the December 2015 judgment"), holding the mother in contempt for her failure to allow the paternal grandmother to exercise visitation. The circuit court specifically recognized in the December 2015 judgment that it lacked the power to modify the Texas judgment and that it was merely enforcing it under Ala. Code 1975, § 30–3B–306. We note that the enforcement of the Texas judgment did not change the Texas judgment into an Alabama child-custody determination. See Official Comment to § 30–3B–306 (stating that, even when registered and enforced by a sister state, a child-custody determination "remains a custody determination of the state that issued it"). No appeal was taken from the December 2015 judgment.

In September 2014, while the 2014 enforcement action was pending in the circuit court, the mother's husband, Shane Krukenberg ("the stepfather"), filed in the Lee Probate Court ("the probate court") a complaint seeking to adopt the children ("the adoption action") pursuant to Ala. Code 1975, § 26–10A–27, which governs stepparent adoptions. The adoption action was later transferred to the Lee Juvenile Court ("the juvenile court") and remained pending until a final hearing, which was held on July 20, 2017. The juvenile court denied the adoption.

The mother, the stepfather, and the children moved to Kentucky in July 2015. In June 2017, the paternal grandmother filed an action in the circuit court seeking to again hold the mother in contempt of the Texas judgment ("the 2017 enforcement action"). The paternal grandmother had the mother served in the 2017 enforcement action at the mother's residence in Kentucky.

The mother filed in the circuit court a motion to dismiss the 2017 enforcement action. She attached to that motion an affidavit averring that she and the children had lived in Kentucky since July 2015. On July 20, 2017, the circuit court entered an order denying the mother's motion, stating that "this court has continuing jurisdiction to enforce its orders. Further, it is this court's intention to retain jurisdiction until further orders to the contrary." In the same order, the circuit court set the contempt issue for a trial on August 16, 2017, and ordered that the paternal grandmother be permitted to take the children with her for a period of visitation to end by August 12, 2017. The July 20, 2017, order was personally served on the mother while she was at the trial of the adoption action.

The mother filed this petition for the writ of mandamus on July 25, 2017. On the same date, she also sought a stay of that portion of the July 20, 2017, order setting a trial on the contempt issues for August 16, 2017, and of that portion of the order permitting the paternal grandmother to exercise visitation with the children. We granted the stay of the August 16, 2017, trial, denied the stay insofar as it sought relief from the order mandating visitation with the paternal grandmother, and called for an answer to the petition, which has been filed.¹ The mother amended her petition on July 26, 2017, to add an additional argument relating to the validity of the December 2015 judgment.

"The denial of a motion to dismiss for lack of jurisdiction is reviewable upon a timely filed petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) ; Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 57 (Ala. 2006). With regard to an appellate court's consideration of a petition for a writ of mandamus, our supreme court has stated:

" ‘This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus 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 Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997). 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. SeeEx parte Rudolph, 515 So.2d 704, 706 (Ala. 1987).’ "

Ex parte Diefenbach, 64 So.3d 1091, 1093 (Ala. Civ. App. 2010) (quoting Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) ).

The mother raises three arguments in her petition and amended petition. She first contends that the circuit court lacks subject-matter jurisdiction over the 2017 enforcement action because she and the children no longer live in Alabama. She then argues that the circuit court lacks personal jurisdiction over her. Finally, the mother argues that, because the paternal grandmother did not strictly comply with the requirements of § 30–3B–305 when she filed her complaint seeking registration of the Texas judgment in the 2014 enforcement action, the December 2015 judgment is void and the circuit court necessarily lacks subject-matter jurisdiction over the 2017 enforcement action because the Texas judgment has never been properly registered in Alabama.

We will first consider the mother's argument that the circuit court lacks personal jurisdiction over her. She contends that, although she lived in Alabama in the past, she no longer has minimum contacts with the state sufficient to permit the circuit court to exercise either general or specific in personam jurisdiction over her. We agree.

As the mother contends, the fact that she is no longer an Alabama resident requires us to determine whether an Alabama court may exercise jurisdiction over her.

" Rule 4.2(b), Ala. R. Civ. P., permits Alabama courts to exercise personal jurisdiction over an out-of-state defendant. It provides, in pertinent part, as follows:

" ‘(b) Basis for Out–of–State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States ....’

"Regarding Rule 4.2(b), [the Alabama Supreme] Court has said:

" ‘In accordance with the plain language of Rule 4.2, both before and after the 2004 amendment, Alabama's long-arm rule consistently has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process. Duke v. Young, 496 So.2d 37 (Ala. 1986) ; DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447 (Ala. 1977). As this Court reiterated in Ex parte McInnis, 820 So.2d 795, 802 (Ala. 2001) (quoting Sudduth v. Howard, 646 So.2d 664, 667 (Ala. 1994) ), and even more recently in Hiller Investments Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1115 (Ala. 2006) : " Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of the Alabama courts to the limit of due process under the federal and state constitutions." (Emphasis added.)’

" Ex parte DBI, Inc., 23 So.3d 635, 643 (Ala. 2009)."

Ex parte Alamo Title Co., 128 So.3d 700, 709 (Ala. 2013).

The Alabama Supreme Court has explained the limits of due process in regard to service of process on a nonresident defendant as follows:

"The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient ‘minimum contacts’ with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question with regard to the nonresident defendant's contacts is whether the contacts are such that the nonresident defendant ‘ "should reasonably anticipate being haled into court" ’ in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62

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