Weesner v. Diefenbach)

• Decision Date: 10 December 2010
• Docket Number: 2090716.
• Citation: 64 So.3d 1091
• Parties: Ex parte Debra Rose DIEFENBACH.(In re Simon Andrew Weesnerv.Debra Rose Diefenbach).
• Court: Alabama Court of Civil Appeals

64 So.3d 1091

Ex parte Debra Rose DIEFENBACH.(In re Simon Andrew Weesner

v.Debra Rose Diefenbach).

2090716.

Court of Civil Appeals of Alabama.

Dec. 10, 2010.

Amber Yerkey James of James Family Law Center, LLC, Huntsville, for petitioner.Joan–Marie Dean, Huntsville, for respondent.

On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of October 8, 2010, is withdrawn, and the following is substituted therefor.

On June 11, 2003, the Circuit Court of the Fourth Judicial Circuit in Florida entered a judgment (hereinafter “the Florida divorce judgment”) divorcing Simon Andrew Weesner (“the father”) and Debra Rose Diefenbach (“the mother”). The Florida divorce judgment incorporated the terms of a settlement agreement reached by the parties. In pertinent part, the Florida divorce judgment awarded the mother primary physical custody of the parties' minor child.

On November 2, 2009, the father, a resident of Limestone County, filed in the Limestone Circuit Court (hereinafter “the trial court”) a petition seeking to domesticate the Florida divorce judgment and seeking to modify the custody award in that judgment. In his petition, the father alleged that neither party remained in Florida, that the mother had lived in three different states since the parties' 2003 divorce, and that the mother and the child had relocated to Minnesota from Illinois in September 2009. As a basis for his claim seeking a modification of child custody, the father alleged that the mother was in an abusive relationship and that the child had witnessed incidents of domestic abuse.

On January 30, 2010, the mother responded by moving to dismiss the father's petition. In that motion to dismiss, the mother argued that the trial court could not properly exercise personal jurisdiction over her and that it lacked subject-matter jurisdiction over the father's custody-modification claim. In her motion to dismiss, the mother asserted that she and the parties' minor child do not currently live, and have never lived, in Alabama.

The trial court conducted a hearing on the mother's motion to dismiss. On March 26, 2010, the trial court entered an order denying that motion. The mother timely filed a petition for a writ of mandamus in this court.

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. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala.1987).”

Ex parte Flint Constr. Co., 775 So.2d at 808. In discussing the review of a denial of a motion to dismiss for lack of subject-matter jurisdiction, the court further explained:

“ ‘In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:

“ ‘ “A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.”

“ ‘878 So.2d at 1148–49.’ ”

Ex parte Alabama Dep't of Transp., 978 So.2d 17, 21 (Ala.2007) (quoting Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005)). Similarly,

“ ‘ “[i]n considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiff's complaint not controverted by the defendant's affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and ‘where the plaintiff's complaint and the defendant's affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.’ Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)). ‘For purposes of this appeal [on the issue of in personam jurisdiction] the facts as alleged by the ... plaintiff will be considered in a light most favorable to him [or her].’ Duke v. Young, 496 So.2d 37, 38 (Ala.1986).”

“ ‘ Ex parte McInnis, 820 So.2d [795] at 798 [ (Ala.2001) ].’ ”

Ex parte Barton, 976 So.2d 438, 442–43 (Ala.2007) (quoting Ex parte Puccio, 923 So.2d 1069, 1072 (Ala.2005)).

Alabama has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at § 30–3B–101 et seq., Ala.Code 1975, to govern child-custody disputes involving, or potentially involving, more than one jurisdiction. With regard to modifying a custody judgment entered by a court of another state, Alabama's version of the UCCJEA provides:

“Except as otherwise provided in Section 30–3B–204,¹ a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Section 30–3B–201(a)(1) or (2) and:

“(1) The court of the other state determines it no longer has continuing, exclusive jurisdiction under Section 30–3B–202 or that a court of this state would be a more convenient forum under Section 30–3B–207; or

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

§ 30–3B–203, Ala.Code 1975.

In this case, there is no indication in the materials submitted to this court that the Florida court has declined to exercise its continuing jurisdiction. Accordingly, in order to have jurisdiction to modify the custody provisions of the Florida divorce judgment, the trial court would have to properly conclude that it had jurisdiction to make an initial custody determination pursuant to subsections (1) or (2) of § 30–3B–201 and that the parties and the child no longer reside in Florida. § 30–3B–203. See also Official Comment to § 30–3B–203, Ala.Code 1975 (“[A] court of the modification state can determine that all parties have moved away from the original state. The court of the modification state must have jurisdiction under the standards of Section 201.”).

The relevant portions of § 30–3B–201 provide:

“(a) Except as otherwise provided in Section 30–3B–204, a court of this state has jurisdiction to make an initial child custody determination only if:

“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30–3B–207 or 30–3B–208, and:

“a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

“b. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.”

In this case, the parties do not dispute that they have moved from Florida. There is no contention that Alabama is the child's home state or that it was the child's home state within six months of the father's initiation of the modification proceeding. Therefore, the trial court would not have had jurisdiction to make an initial custody determination under § 30–3B–201(a)(1). Thus, the trial court cannot base its jurisdiction for modifying custody pursuant to § 30–3B–203 on subsection (a)(1) of § 30–3B–201.

Section 30–3B–201(a)(2) specifies, among other things, that, for the modifying court to properly exercise jurisdiction, a court of another state must not have jurisdiction pursuant to § 30–3B–201(a)(1) or the court in the child's home state must have declined to exercise jurisdiction. § 30–3B–201(a)(2). There is no allegation or evidence in this matter indicating that the Florida court or a court of any other jurisdiction has declined to exercise jurisdiction over a custody action pertaining to the child. Accordingly, in order to determine whether the trial court could exercise jurisdiction under § 30–3B–201(a)(2) so as to meet the requirements of § 30–3B–203, we must examine whether a court of another jurisdiction has jurisdiction as the child's home state under § 30–3B–201(a)(1).

The materials submitted to this court demonstrate that the mother and the child moved to Minnesota in September 2009, shortly before the father filed his November 2009 custody-modification action in the trial court. Thus, it is clear that the child had not resided in Minnesota for six months before the...