Ex parte Fordham

144 So.3d 319

Ex parte Caroline M. SIDERIUS(In re Kenneth V. Fordham

v.Caroline M. Siderius).

1120509.

Supreme Court of Alabama.

Nov. 27, 2013.

Randall W. Nichols and Joshua T. King of Massey, Stotser & Nichols, P.C., Birmingham; and David P. Broome, Mobile, for petitioner.

Joseph C. Sullivan, Jr., of Hamilton, Butler, Riddick, Tarlton & Sullivan, P.C., Mobile, for respondent.

MOORE, Chief Justice.

Petitioner Caroline M. Siderius petitions for a writ of mandamus directing Judge Donald Banks of the Mobile Circuit Court to enter an order dismissing Kenneth V. Fordham's child-custody proceeding. We grant the petition and issue the writ.

I. Facts and Procedural History

Siderius and Fordham entered into a common-law marriage in 2006.¹ From September 2006 to July 2009, they lived together as husband and wife in Mobile with their minor children, L.F. and M.F. Siderius worked as a prosecutor in Mobile. Fordham is a retired Coast Guard officer and is involved in several business enterprises. In June 2009, Siderius accepted an appointment with the Social Security Administration's Office of Disability Adjudication and Review (“ODAR”) to serve as an administrative law judge in the Portland, Oregon, ODAR office. In July 2009, Siderius moved with L.F. and M.F. to Portland to begin her new job. Fordham thereafter joined the family in Portland.

The family lived in Portland until March 2010. L.F. and M.F. were enrolled in Oregon's West Linn school district from September 2009 through March 2010. Fordham would travel periodically to Alabama to manage rental properties he owns in Mobile. In February 2010, Siderius sought a hardship transfer to the Spokane, Washington, ODAR office. The hardship transfer was approved, and in March 2010 the whole family relocated to Washington. On April 6, 2010, Fordham and Siderius enrolled L.F. and M.F. in the Spokane public schools, which they attended until June 2011, the start of that year's summer vacation.

In May 2011, the parties retained a court-approved mediator to assist with the dissolution of their marriage and custody of the minor children. With the mediator's assistance, the parties developed parenting plans and a visitation schedule for the summer of 2011. Fordham does not dispute that the parties agreed that M.F. would be in Alabama from June 17 to July 7 or 8, 2011, and would then return to Washington. Likewise, Fordham does not dispute that the parties agreed that L.F. would be in Alabama from July 21 to August 6, and would then return to Washington. M.F. and L.F. traveled to Alabama as planned, and remained there with Fordham.

The parties had planned for M.F. and L.F. to return to Spokane in July and August, respectively, and in any case before September 3, 2011, to start school on September 6. Siderius purchased a plane ticket for M.F. to return to Spokane on August 11, 2011. However, on September 6 and 7, Fordham transferred the school registration of both children, who had remainedin Alabama, from Spokane to schools in Mobile.

On August 11, 2011, Fordham filed a child-custody petition and complaint for divorce in the Mobile Circuit Court. Fordham also filed an emergency motion seeking immediate custody of the children. The next day, the Mobile Circuit Court signed an order granting Fordham's emergency motion and awarding him custody of the children pendente lite. On August 15, 2011, Siderius filed a petition in Spokane seeking dissolution of the marriage and custody of the minor children. The same day, the Spokane trial court issued an ex parte restraining order ordering Fordham to return the minor children to Washington. The Spokane trial court also scheduled initial divorce, custody, and contempt hearings, and a telephone conference with the Mobile Circuit Court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, § 30–3B–101 et seq., Ala.Code 1975 (“the UCCJEA”). Also on August 15, 2011, Siderius filed a limited appearance in Fordham's Mobile proceeding to challenge personal and subject-matter jurisdiction.

On August 30, 2011, the Spokane and Mobile courts held a telephone conference as required by the UCCJEA, § 30–3B–110, Ala.Code 1975. The Mobile court also held an evidentiary hearing on that day on the question of which state had jurisdiction and held a follow-up hearing on October 4, 2011. During the August 30 hearing, Siderius moved to dismiss Fordham's complaint because he had not provided an affidavit of custody as required by § 30–3B–209, Ala.Code 1975. Siderius argued that the proceeding fell under the UCCJEA as an initial custody proceeding. Fordham asserted that he need not file anything under the UCCJEA and argued that Alabama already had jurisdiction over Siderius. The Mobile court denied or withheld ruling on Siderius's motion.

On October 7, 2011, the Mobile court issued an order finding that it had jurisdiction over Siderius on the basis of her minimum contacts with Alabama. The court did not rule on the applicability of the UCCJEA to the proceeding. In December 2011, L.F. returned to Washington and has resided with Siderius since that date.

Siderius thereafter filed a petition for a writ of mandamus in the Alabama Court of Civil Appeals. Fordham argued that the trial court had not ruled on the UCCJEA issue and that, therefore, Siderius's petition was premature. The Court of Civil Appeals denied Siderius's petition without an opinion. Ex parte Siderius (No. 2110171, January 11, 2012), 129 So.3d 1052 (Ala.Civ.App.2012) (table).

On February 10, 2012, the Spokane court issued an order awarding custody of the children to Siderius and finding, among other things, that Washington had jurisdiction under the UCCJEA because the minor children had lived with their parents in Washington for 17 months before the commencement of the child-custody proceeding in Alabama. The Spokane court also found Fordham in contempt for failing to return the children to Washington as the court had ordered in its August 15, 2011, restraining order. On February 24, 2012, Siderius registered the Spokane court's custody determination and a motion for enforcement with the Mobile court. In March 2012, the Mobile court held a hearing on Siderius's motion. On July 12, 2012, the Mobile court issued a brief order denying Siderius's motion to enforce the Spokane court's custody determination.

Siderius again petitioned the Court of Civil of Appeals for a writ of mandamus, seeking review of the Mobile court's July 2012 order. The Court of Civil Appeals denied Siderius's petition on January 11, 2013. Ex parte Siderius, 118 So.3d 712 (Ala.Civ.App.2013). That court explained its reasons for denying the petition as follows:

“[T]he mother has submitted no evidence that she might have relied upon in the Mobile Circuit Court as potentially supporting her position.... Notably, the affidavit of, and the letter authored by, the parties' minor daughter, which documents were submitted by the father to the Mobile Circuit Court in support of his August 11, 2011, filings, have not been submitted to this court, nor do we have any transcript or statement of evidence adduced in the Mobile Circuit Court on September 30, 2011, and October 4, 2011, that might have persuaded that court to conclude that it, and not the Washington court, had ‘home state’ jurisdiction notwithstanding the extended absences of the children and the father from Alabama.”

118 So.3d at 716. Siderius thereafter filed this petition with this Court, together with the transcript of the Alabama trial court's September and October 2011 hearings and relevant supporting evidence.

II. Standard of Review

“[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.” Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) (citing Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998)).

“ ‘ “A writ of mandamus is an extraordinary remedy that requires a showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.” ’ ”

Ex parte Punturo, 928 So.2d 1030, 1033 (Ala.2002) (quoting Ex parte Bruner, 749 So.2d 437, 439 (Ala.1999), quoting in turn Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998)). “Subject-matter jurisdiction cannot be waived, and the lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu.” 928 So.2d at 1033 (citing Greco v. Thyssen Mining Constr., Inc., 500 So.2d 1143 (Ala.Civ.App.1986)). “A judgment issued by a trial court without jurisdiction is a nullity.” 928 So.2d at 1034 (citing Ex parte Hornsby, 663 So.2d 966 (Ala.1995)).

III. Discussion

For this Court to issue a writ of mandamus, Siderius must demonstrate that she has a clear legal right to an order dismissing Fordham's custody proceeding in Alabama. The controlling issue is which state—Alabama or Washington—has jurisdiction to make an initial child-custody and visitation determination under § 30–3B–201, Ala.Code 1975.

A. Home–State Jurisdiction Under the UCCJEA

Alabama and Washington have both adopted the UCCJEA. See § 30–3B–101 et seq., Ala.Code 1975, and § 26.27.011 et seq., Wash. Rev.Code Ann. (2001).

The relevant parts of Washington's and Alabama's respective versions of the UCCJEA are substantially the same. Section 30–3B–201 governs jurisdiction of Alabama courts to make an initial child-custody determination:

“(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;

“....

“(b) Subs...