Robertson v. Robertson
| Decision Date | 13 July 1988 |
| Parties | James Calder ROBERTSON, III v. Kathleen Jane ROBERTSON. Civ. 6304. |
| Court | Alabama Court of Civil Appeals |
H. Dean Mooty, Jr., of Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.
J. Anthony McLain of McLain & Hampton, Montgomery, for appellee.
L. CHARLES WRIGHT, Retired Appellate Judge.
The father appeals from an order of the Circuit Court of Autauga County, Alabama (trial court), which awarded permanent legal custody of the parties' minor children, Brett, age thirteen, and Trent, age eleven, to the mother.
In 1983 the parties were divorced in Alabama. The divorce decree adopted an agreement of the parties which provided, in pertinent part, that the minor children would reside with the father for the first year, the mother for the second year, and thereafter the future pattern of the children's residence was to be determined by the mutual agreement of the parties.
The mother has continued to reside in Alabama since the divorce. The minor children have resided with the father, who is in the military, since the divorce. They have made periodic visits to Alabama to see the mother. The mother testified that the father has not complied with the "mutual agreement" aspect of the custody provision on several occasions.
Affidavits of both the mother and the father state that the boys and their father resided in South Carolina from mid-1983 until December 1984. From January 1985 until May 1986 the boys lived with their paternal grandparents in Texas. From May 1986 until July 1987 the boys lived with their father in Germany, where he was stationed with the military.
On July 7, 1987 the father filed a petition in a Texas court identifying himself as a Texas resident and requesting that he be appointed temporary managing conservator of the minor children. The mother filed a special appearance and advised the Texas courts that she was not a Texas resident. She further alleged that Alabama, not Texas, had jurisdiction under the Parental Kidnapping Prevention Act (PKPA).
After a hearing the Texas court took jurisdiction of the children based on a finding of temporary emergency. The Texas court held a hearing on the matter of temporary conservatorship in August 1987. The father was appointed temporary managing conservator of the children. The mother was to enjoy visitation rights with the minor children in Alabama from August 12, 1987 until August 29, 1987. She was then to surrender the children to the father. The case was set for trial on the merits for September 23, 1987. The mother filed a petition for writ of prohibition and for writ of mandamus in both the Texas Court of Appeals and the Supreme Court of Texas. Both Texas appellate courts have denied her request for relief.
On July 24, 1987 the mother filed in the Alabama trial court a petition for rule nisi and a petition for modification of the custody provisions of the divorce decree. She requested that custody of the parties' minor children be awarded to her. A hearing was set for September 16, 1987. The father was personally served in Texas on August 10, 1987.
On the date set for hearing in Alabama the father's attorney filed a motion to dismiss or for continuance in open court. This motion stated that the Alabama courts did not have jurisdiction to hear the matters before it because there were on-going custody proceedings in Texas. This motion was denied and the hearing proceeded.
The trial court entered its order on September 17, 1987 which recognized that there existed a jurisdictional dispute over this matter with the courts in Texas. However, the trial court determined that Alabama had continuing jurisdiction over this matter pursuant to the 1983 divorce decree and the trial court refused to relinquish its jurisdiction. The trial court also found that the Texas courts had improperly assumed jurisdiction under the PKPA.
After addressing the jurisdictional questions, the trial court determined that there had been a substantial and material change of circumstances and granted the wife's petition for modification.
The father's motion for reconsideration--based upon the argument that Texas had properly assumed jurisdiction of this matter and the order of the trial court should be vacated--was denied. The father filed his notice of appeal on December 23, 1987.
The father contends that the trial court erred when it determined that it had continuing jurisdiction in light of the judgments rendered by the Texas courts. He also argues that the trial court erred when it failed to give full faith and credit to the Texas judgments because the proceedings in Texas had been initiated prior to the commencement of the Alabama proceedings.
The PKPA, 28 U.S.C.A. § 1738A (West Supp.1987), provides, in pertinent part:
In Ex parte Blanton, 463 So.2d 162 (Ala.1985), the Alabama Supreme Court sought to determine whether Louisiana or Alabama had jurisdiction in the case. The court determined that Louisiana's jurisdiction under the PKPA continued only as long as one of the parties or the children resided in Louisiana. It further stated:
"If one or more of the above-named parties continued to reside in Louisiana at the time the Mobile court exercised its jurisdiction, the Louisiana court's continuing jurisdiction triggered § 1738A(g) and the action of the Mobile court, even though proper under Alabama's 'home state' provision, was barred."
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