S.Q. v. J.B. (Ex parte J.B.)

• Decision Date: 18 November 2016
• Docket Number: 2151005
• Citation: 223 So.3d 251
• Parties: EX PARTE J.B. (In re S.Q. v. J.B.)
• Court: Alabama Court of Civil Appeals

223 So.3d 251

EX PARTE J.B.(In re S.Q.

v.J.B.)

2151005

Court of Civil Appeals of Alabama.

Nov. 18, 2016

Heather Fann of Boyd, Fernambucq, Dunn & Fann, P.C., Birmingham, for petitioner.

Ralph J. Bolen of Bolen & Bolen, Attorneys at Law, Chelsea, for respondent.

THOMAS, Judge.

In January 2016, J.B. ("the alleged father") commenced an action against S.Q. ("the mother") in the Circuit Court of Martin County, Florida ("the Florida court"), seeking to establish the paternity of A.L.Q. ("the child"). The alleged father's verified complaint initiating the action in the Florida court ("the Florida action") averred that he and the mother were unmarried and that both were residents of Florida. He further averred that he and the mother had engaged in sexual intercourse in March, April, and May 2015 and, thus, that the child had been conceived in Florida.

In February 2016, the mother commenced a paternity and child-support action in the Jefferson Juvenile Court ("the Alabama court"), seeking to establish the alleged father's paternity of the child and an award of child support. That action was assigned case no. CS–16–67 ("the Alabama action"). The mother alleged in her complaint in the Alabama action that she was a resident of Jefferson County, Alabama, and that the alleged father was a resident of Martin County, Florida. She made no averments regarding the state in which the child was conceived.

In April 2016, the alleged father filed in the Alabama action a verified motion to dismiss. In that motion, the alleged father averred that the Alabama court lacked both subject-matter jurisdiction over the Alabama action and personal jurisdiction over him. The alleged father stated that he was a resident of Florida and that the mother did not live in Jefferson County, Alabama, as she had alleged. The alleged father also notified the Alabama court that the Florida action was pending in the Florida court and stated that, pursuant to Ala. Code 1975, § 30–3B–204, the Alabama court was therefore required to communicate with the Florida court.

In response, the mother filed what she entitled as a "motion to strike [the alleged father's] motion to dismiss." In her response, the mother contested the jurat certifying the alleged father's verified motion, because it failed to indicate the county or state in which the motion was sworn. She also contended that the alleged father had attempted to make statements regarding facts of which he had no personal knowledge. The mother attached to her response her own affidavit, in which she stated, among other things, that she had moved to Jefferson County, Alabama, from Jensen, Florida, in February 2015. The mother also attached to her affidavit rental agreements for two different residences in Jefferson County, Alabama, at which, she said, she had resided since February 2015.

The Alabama court set the matter for a hearing to be held on August 10, 2016. After hearing arguments of counsel at the August 10, 2016, hearing, which the Alabama court conducted via telephone, the Alabama court denied the alleged father's verified motion to dismiss. The alleged father filed a motion to reconsider the August 10, 2016, order on August 24, 2016; he attached several documents to that motion. For example, he attached to that motion a custody agreement between the mother and R.K., the father of the mother's other child, indicating that the mother, after February 2015, had listed a Jensen, Florida, address as her residence. In addition, he provided a statement from a process server indicating that packages bearing the mother's name and a Jensen, Florida, address were at the residence located at that address when he attempted service on the mother in February 2016. The Alabama court had not ruled on that motion as of September 21, 2016.

On September 22, 2016, the alleged father filed this petition for the writ of mandamus. This court called for an answer, and the answer was filed on October 6, 2016. The petition was submitted for decision on October 7, 2016. The alleged father argues that the Alabama court lacks personal jurisdiction over him and that it also lacks subject-matter jurisdiction over the Alabama action under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), codified at Ala. Code 1975, § 30–3B–101 et seq.

We must first consider whether the jurisdiction of this court was timely invoked. Rule 21(a)(3), Ala. R. App. P., provides that a petition for the writ of mandamus is presumptively timely if it is filed within the period permitted for an appeal of a judgment of the court in which the challenged order was entered. Because this is a paternity action commenced in the Jefferson Juvenile Court, the applicable period is 14 days. See Ex parte C.J.A. , 12 So.3d 1214, 1215–16 (Ala. Civ. App. 2009) The Alabama court entered its interlocutory order denying the alleged father's verified motion to dismiss on August 10, 2016, more than 14 days before the petition was filed. Motions to reconsider an interlocutory order do not toll the time for seeking review by a petition for the writ of mandamus. See Ex parte C.J.A. , 12 So.3d at 1215–16 ; Ex parte Troutman Sanders, LLP , 866 So.2d 547, 549–50 (Ala. 2003). Thus, the petition was not timely filed.

Pursuant to Rule 21(a)(3), "[i]f a petition is filed outside th[e] presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time." The alleged father has included a statement regarding timeliness with his petition. As we explained in Ex parte Fiber Transport, L.L.C. , 902 So.2d 98, 100–01 (Ala. Civ. App. 2004), a party seeking to convince this court to consider an untimely filed petition should discuss the factors set out in

"[t]he ‘Committee Comments to Amendments to Rule 21(a) and 21(e)(4) [, Ala. R. App. P.,] Effective September 1, 2000,’ [which are as follows]:

" ‘[T]he prejudice to the petitioner of the court's not accepting the petition and the prejudice to the opposing party of the court's accepting it; the impact on the timely administration of justice in the trial court; and whether the appellate court has pending before it other proceedings relating to the same action, and as to which the jurisdiction of the appellate court is unchallenged.’ "

The alleged father states the following as reasons for this court to disregard the untimeliness of his petition: that the Alabama judge had been on leave for several months, that the parties were unaware that the August 10, 2016, hearing would be conducted via telephone until the date of the hearing, that the Alabama court was unable to view the alleged father's evidence because the hearing was conducted via telephone, that the alleged father "fully anticipated [the Alabama] court's dismissal of the case for lack of jurisdiction" based on the motion to reconsider, and that, despite having been provided documentary evidence in support of the motion to reconsider, the Alabama court had neither set the motion for a hearing nor ruled on the motion within 14 days. The alleged father also relies on the fact that the prejudice to him will be considerable, because, he says, he will be required to litigate the Alabama action, in violation of his due-process rights, while, he states, "the mother will face little prejudice." Regarding the "impact on the timely administration of justice" in the Alabama court, the alleged father contends that the timely administration of justice "will be served by prompt and final ruling" on this petition.

We begin our analysis regarding the timeliness of the alleged father's petition with the recognition that our supreme court recently determined that, in situations in which a petition for the writ of mandamus challenges the subject-matter jurisdiction of the court in which the challenged interlocutory order was rendered, the petition need not timely invoke the jurisdiction of the appellate court. Ex parte K.R. , 210 So.3d 1106, 1112 (Ala. 2016). Instead, relying on the principle that an appellate court may review the issue of subject-matter jurisdiction regardless of whether that issue was raised in the trial court or even on appeal, our supreme court stated that subject-matter jurisdiction could be raised ex mero motu at any time despite the lack of a timely filed petition invoking the appellate court's jurisdiction. Ex parte K.R. , 210 So.3d at 1112. Thus, regarding the alleged father's issue relating to the subject-matter jurisdiction of the Alabama court, we must consider that issue regardless of the failure of the alleged father to timely invoke our jurisdiction.

As noted, the alleged father makes other arguments in his petition. He argues that the Alabama court lacks personal jurisdiction over him and that the Alabama court violated a provision of the UCCJEA by failing to communicate with the Florida court. See Ala. Code 1975, § 30–3B–206(b) (requiring a court facing a simultaneous proceeding in another state that appears to be exercising jurisdiction in conformity with the UCCJEA to "stay its proceeding and communicate with the court of the other state"). Those arguments are not arguments pertaining to the subject-matter jurisdiction of the Alabama court and, therefore, could be rejected merely because the petition was untimely filed. Ex parte K.R. , 210 So. 3d at 1111–12. However, we may entertain all the issues raised in the petition if we conclude that the alleged father has asserted "good cause" for us to do so despite the untimeliness of the petition.

As noted, the alleged father's statement regarding timeliness focuses on the unusual nature of the proceeding in the Alabama court and his attempt to have the interlocutory order reconsidered. We conclude that the facts and circumstances relating to the Alabama court's conducting the hearing via telephone and its subsequent failure to hold a hearing on the motion to...