Gray v. Gray

139 So.3d 802

Kenneth Eugene GRAY

v.Jenifer Lee GRAY.

2120225.

Court of Civil Appeals of Alabama.

Aug. 2, 2013.

Derrick Blythe, Alexander City, for appellant.

Jenifer Lee Gray, pro se.

THOMAS, Judge.

Kenneth Eugene Gray (“the father”) and Jenifer Lee Gray (“the mother”) were married in Florida in January 2009. They moved to Alabama in January 2010. On July 25, 2010, the mother left the marital residence and relocated to Michigan; she was pregnant with the parties' child. The father filed an action in the Tallapoosa Circuit Court (“the Alabama trial court”) seeking a divorce from the mother on September 3, 2010. The mother delivered the parties' child in Michigan on October 26, 2010.

On June 13, 2011, the mother filed a motion to dismiss the father's action, alleging, among other things, that the Alabama trial court lacked jurisdiction to make a child-custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Ala.Code 1975, § 30–3B–101 et seq. The mother submitted an affidavit in support of her motion to dismiss; she stated that she had left Alabama in July 2010, that the child had been born in Michigan, and that the child had never been to Alabama. After a hearing on the mother's motion, the Alabama trial court denied her motion by order dated August 1, 2011. The mother filed a motion seeking reconsideration of the Alabama trial court's denial of her motion to dismiss, which the Alabama trial court denied in November 2011.

The case proceeded to a trial in November 2012, at which the mother appeared only through counsel. Only the father testified at trial. According to the father, the mother had stolen certain items when she left the marital residence. He also stated that the mother was addicted to narcotic pain medication and opined that she was unfit to rear the parties' child. Upon questioning by the mother's counsel, the father admitted that he had sought mental-health treatment during the parties' marriage and that he had, at one time, taken certain medications as a result; he did not state his diagnosis, and he said that he no longer took the medications. The Alabama trial court entered a judgment on November 19, 2012, in which it divorced the parties, awarded the parties joint legal custody of the child, awarded the mother physical custody of the child, awarded the father certain visitation privileges, and ordered the father to pay child support. The father filed a timely notice of appeal. He challenges the award of physical custody to the mother.

Neither party has raised the issue of this court's jurisdiction over this appeal. However, because jurisdictional matters are of such magnitude, this court is permitted to notice a lack of subject-matter jurisdiction ex mero motu. See Williams v. Williams, 70 So.3d 332, 333 (Ala.Civ.App.2009). “[J]urisdiction to make a child custody determination [under the UCCJEA] is subject matter jurisdiction,” Ala.Code 1975, § 30–3B–201, Official Comment.

The UCCJEA provides the framework for the determination of what state may enter a child-custody determination regarding a child. Section 30–3B–201 provides:

“(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;

“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30–3B–207 or 30–3B–208; or

“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).

“(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

“(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.”

The UCCJEA defines “home state” in § 30–3B–102(7), which reads in its entirety:

“The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of the child or any of the mentioned persons is part of the period.”

The evidence in the record establishes that the parties' child was born in Michigan and has never resided in Alabama. These facts raise the question whether Alabama is the child's home state under the UCCJEA. The home-state determination in the present case is complicated by the fact that, at the time of the commencement of the father's divorce action, the child had not yet been born. The definition of “home state” in the UCCJEA expressly addresses a situation involving a child less than six months of age at the time of the commencement of the action, whose home state would be “the state in which the child lived from birth” with a parent or a person acting as a parent. However, the definition does not clearly indicate how it is to be applied to unborn children, who, at the time of the commencementof the action seeking to determine their custody, have not yet “lived from birth” in any state.

Alabama has yet to consider the application of the UCCJEA to such a situation. The determination of this jurisdictional question requires us to interpret the definition of “home state” contained within the UCCJEA. Thus, we will begin by considering the principles applicable to statutory construction.

“It is this Court's responsibility to give effect to the legislative intent whenever that intent is manifested. State v. Union Tank Car Co., 281 Ala. 246, 248, 201 So.2d 402, 403 (1967). When interpreting a statute, this Court must read the statute as a whole because statutory language depends on context; we will presume that the Legislature knew the meaning of the words it used when it enacted the statute. Ex parte Jackson, 614 So.2d 405, 406–07 (Ala.1993).... Furthermore, we must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says. Ex parte Shelby County [ Health ] Care Auth., 850 So.2d 332 (Ala.2002).”

Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 517 (Ala.2003). In addition, “ ‘ “ ‘[t]here is a presumption that every word, sentence, or provision [of a statute] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.’ ” ' ” Surtees v. VFJ Ventures, Inc., 8 So.3d 950, 970 (Ala.Civ.App.2008) (quoting Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala.2000), quoting in turn other cases).

A fair reading of § 30–3B–102(7) results in the conclusion that an unborn child cannot have a home state. Generally, a state secures the status of “home state” if a child has lived in that state with a parent or a person acting as a parent for a period of six months preceding the commencement of a child-custody proceeding. § 30–3B–102(7). Pursuant to its definition, the term “home state” is expressly applied to children less than six months of age, and the requirement that the child live in a state for at least six months preceding the commencement of a child-custody proceeding is relaxed to make the home state that state “in which the child lived from birth with [a parent or a person acting as a parent].” Id. An unborn child, however, has not “lived from birth” in any state.¹ Thus, we are convinced that the UCCJEA does not provide a basis for jurisdiction over a child-custody proceeding involving an unborn child.

Such a construction comports with the conclusion of three of our sister states that have directly considered the question under their versions of the UCCJEA. ²See, e.g., Arnold v. Price, 365 S.W.3d 455, 461 (Tex.App.2012) (concluding that a home-state determination could not be made at the commencement of a child-custody proceeding when the child was yet unborn and that the state in which the child was later born would become his home state at the time of his birth); B.B. v. A.B., 31 Misc.3d 608, 916 N.Y.S.2d 920 (Sup.Ct.2011) (determining that the home state of a child born in Minnesota after the mother decided not to return to New York after a visit to her childhood home in Minnesota was Minnesota and not New York, where the mother and father had resided as a married couple); Waltenburg v. Waltenburg, 270 S.W.3d 308, 318 (Tex.App.2008) (deciding under the Texas version of the UCCJEA that the UCCJEA “does not authorize jurisdiction over a child custody claim concerning a child before its birth”); In re Custody of Kalbes, 302 Wis.2d 215, 733 N.W.2d 648 (Ct.App.2007) (determining that Idaho did not have jurisdiction under the UCCJEA of a child who was not born at the time the Idaho action was instituted and who was later born in Wisconsin); see also In re...