Ex parte T.M.

Jefferson Juvenile Court, Bessemer Division, JU-21-219.01

PETITION FOR WRIT OF MANDAMUS

FRIDY, JUDGE

T.M. ("the mother") petitions this court for a writ of mandamus, challenging the September 15, 2021, order entered by the Bessemer Division ("the Bessemer division") of the Jefferson Juvenile Court ("the juvenile court") denying her second motion to dismiss the petition of J.D. ("the father") seeking to modify the child-custody provision of a judgment entered by the Harrison County, Mississippi, Chancery Court ("the Mississippi chancery court") or, alternatively, to transfer the father's action to the Birmingham Division ("the Birmingham division") of the juvenile court. For the reasons set forth below, we grant the mother's mandamus petition in part and deny it in part.

Background

The materials submitted to this court indicate the following. In October 2016, a child, S.D. ("the child"), was born of the relationship between the mother and the father, who have never been married to each other. On May 24, 2019, the Mississippi chancery court entered a judgment ("the Mississippi judgment"), awarding the mother and the father joint legal custody of the child and awarding the father visitation pursuant to a specific visitation schedule. Although the Mississippi

judgment did not explicitly award the mother sole physical custody, that award was implicit given the father's award of visitation, and no one asserts that the mother does not have sole physical custody of the child as a result of the Mississippi judgment. The Mississippi judgment also ordered the father to pay child support. At the time the Mississippi judgment was entered, the mother lived in Mississippi and the father lived in Birmingham.

On March 20, 2020, the mother and the father filed a joint motion in the Mississippi chancery court seeking to end the father's child-support obligation. In the motion, the parties asserted that, at that time, they were living together in Birmingham and were engaged to be married; thus, they said, the father's child-support payments were no longer necessary. The parties agree that the mother and the child moved back to Mississippi in September 2020. The father continued to live in Birmingham. It appears from the materials submitted to this court that the father thereafter continued to exercise visitation in accordance with the Mississippi judgment.

On March 25, 2021, the mother filed in the Mississippi chancery court a petition for a writ of habeas corpus and seeking to hold the father in contempt ("the contempt petition"), alleging that the father had not returned the child to her when the father's last visitation period had ended on March 1, 2021.^[1] The father was served with the contempt petition, and, on April 27, 2021, he filed in the Bessemer division of the juvenile court a motion to register the Mississippi judgment and a verified petition to modify custody ("the custody-modification petition"). In the custody-modification petition, the father asserted that "there ha[d] been a material change in circumstances [since the entry of the Mississippi judgment] in that upon information and belief the mother regularly exposes the child to inappropriate sexual activities, content, and/or pornographic material, thereby not providing a safe environment for the child." The father then set forth a list of inappropriate conduct of a sexual nature that he said the child had exhibited. In the custody-modification

petition, the father did not mention the mother's contempt petition pending in the Mississippi chancery court.

On May 18, 2021, the mother filed in the Bessemer division of the juvenile court a motion to dismiss the father's custody-modification petition, pointing out the existence of her pending action in the Mississippi chancery court and asserting that the juvenile court did not have subject-matter jurisdiction to consider the father's petition. Alternatively, the mother argued that the father had filed the custody-modification petition in the wrong venue because his home was located in the territorial limits of the Birmingham division, rather than the Bessemer division, where he had filed his petition. See Ex parte Walter Indus., Inc., 879 So.2d 547 (Ala. 2003) (discussing Act No. 213, Ala. Local Acts 1919, establishing the Bessemer division; providing an overview of previous caselaw interpreting Act No. 213 and its predecessor; and determining when venue is appropriate in the Bessemer division).

On May 25, 2021, the juvenile court entered an order granting the father's motion to register the Mississippi judgment and denying the mother's motion to dismiss the custody-modification petition because, it

said, it was exercising its temporary emergency jurisdiction pursuant to § 30-3B-204, Ala. Code 1975, which is a part of Alabama's version of the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), §§ 30-3B-101 to -405, Ala. Code 1975. In the May 25, 2021, order, the juvenile court ordered that the Jefferson County Department of Human Resources ("DHR") be made a party to the action and directed that DHR immediately begin an investigation into what the juvenile court said was "the alleged sexual abuse" of the child. The juvenile court awarded the mother supervised visitation and ordered that the child could not be removed from Alabama. A trial of the matter was scheduled for September 20, 2021.

On September 14, 2021, the mother, through new counsel, filed in the Bessemer division of the juvenile court a second motion to dismiss the custody-modification petition on the ground that the juvenile court lacked subject-matter jurisdiction. She also contended, a second time, that the father had filed the custody-modification petition in the wrong venue. The juvenile court denied the motion the next day. On September 17, 2021, the mother filed her petition for a writ of mandamus and a motion to stay the

September 20 trial. This court granted the motion to stay on September 17, 2021.

Analysis

As we have often noted, a writ of mandamus is an extraordinary remedy that we will issue only if the petitioner properly invokes this court's jurisdiction and shows a clear legal right to the writ, a refusal by the respondent to perform an imperative duty, and the lack of another adequate remedy. See, e.g., Ex parte McConico, 315 So.3d 608, 609 (Ala. Civ. App. 2020).

In her mandamus petition, the mother argues that the juvenile court lacks subject-matter jurisdiction over the custody-modification petition, and, that therefore, it erred in denying her motion to dismiss. This court may review an order denying a motion to dismiss for lack of subject-matter jurisdiction under the UCCJEA via a petition for a writ of mandamus. Ex parte Gallant, 221 So.3d 1120, 1122 (Ala. Civ. App. 2016); see also Ex parte Holloway, 218 So.3d 853 (Ala. Civ. App. 2016). We review the legal question of subject-matter jurisdiction de novo. Hill v. Hill, 89 So.3d 116, 117-18 (Ala. Civ. App. 2010). The mother also contends

that venue is improper in the Bessemer division, and we can address that issue by way of a mandamus petition as well. See Ex parte Pike Fabricators, Inc., 859 So.2d 1089, 1091 (Ala. 2002).

Before considering the merits of the mother's mandamus petition, we first address the father's contention that the mother's petition is untimely because her petition challenges the denial of the second motion to dismiss. Generally, a mandamus petition must be filed "within a reasonable time." Rule 21(a)(3), Ala. R. App. P. The presumptively reasonable time for filing a petition for the writ of mandamus is the same as the time for taking an appeal, which, in a juvenile case, is within fourteen days of the entry of the challenged order. See Rule 21(a)(3), Ala. R. App. P., and Ex parte Madison Cnty. Dep't of Hum. Res., 261...