Johnson v. Rich (Ex parte Rich)

363 So.3d 1022

EX PARTE Angel RICH

( In re: Raymon Brian Johnson v. Angel Rich)

2210228

Court of Civil Appeals of Alabama.

March 4, 2022

Josh M. O'Neal of Josh O'Neal & Associates, Cullman, for petitioner.

Mackenzie Hamilton Jessie of Hamilton Jessie Law, LLC, Andalusia, for respondent.

MOORE, Judge.

Angel Rich ("the mother"), the mother of B.J. ("the child"), has filed a petition for a writ of mandamus requesting that this court issue a writ directing the Covington Circuit Court ("the trial court") to set aside all orders it has entered in this case and to quash service. We deny the petition.

Procedural History

On June 22, 2021, the child's father, Raymon Brian Johnson ("the father"), filed in the trial court a petition to register a Tennessee child-custody order in which the Chancery Court of Knox County, Tennessee ("the Tennessee court"), had awarded the father "primary custody" of the child but had reserved ruling on all issues relating to child support. ¹ In the registration petition, the father requested that the trial court register and enforce the Tennessee child-custody order, establish child support, and order that the father be allowed to claim the child as his dependent for income-tax purposes. Also on June 22, 2021, the attorney for the father sent the mother, via certified mail, notice of the filing of the registration petition. On July 1, 2021, the trial court entered an order indicating that notice of the registration petition had been mailed to the mother and setting the matter for a hearing to take place on August 9, 2021. On July 29, 2021, the father filed a notice asserting that he had perfected service on the mother at her home address, an apartment in Fort Lauderdale, Florida, by certified mail, "restricted delivery." He attached to the notice a United States Postal Service certified-mail return receipt, but the signature on the receipt was illegible and the spaces for the date of the delivery and for the printed name of the recipient remained blank.

On August 6, 2021, the mother filed a motion to continue the scheduled hearing on the registration petition, alleging that she had not been properly served. In her motion, the mother noted the discrepancies on the certified-mail return receipt and alleged that those discrepancies rendered service ineffective. The mother requested that the trial court reset the matter only after the father had perfected service on her and she had been allowed time to respond to the registration petition.

On August 13, 2021, the father amended the registration petition and reissued notice of the registration petition to the mother. On August 30, 2021, the trial court entered an order rescheduling the hearing on the registration petition to October 5, 2021. That order also stated that the court would hear any objections to the registration petition during that hearing. On September 28, 2021, the mother filed a motion requesting that the October 5, 2021, hearing be held as a virtual hearing because she and several persons employed by her attorney had tested positive for COVID-19 coronavirus. The trial court denied that motion on September 29, 2021. The October 5, 2021, hearing proceeded as scheduled; the mother did not appear at that hearing, and the mother's attorney appeared solely for the purpose of contesting service of the notice of the registration petition. ²

On November 18, 2021, the trial court entered an order stating:

"This matter came before the Court on October 5, 2021, on the [father's] ‘Petition to Register Tennessee Custody Order and Petition to Establish Child Support.’ The [father] was present with his attorney of record, the Hon. Maci Jessie. The [mother] was not present. However, she was represented at the hearing by her attorney, the Hon. Jared Arnold.

"The [mother], through counsel, objected to the registration of the Tennessee order on the ground[ ] that she was not served with the notice of registration required by Ala. Code [1975,] § 30-3B-305(b)(2). The Court proceeded to hear argument on the [mother]’s objection.

"Based on the evidence, the Court is of the opinion that the [mother] has received adequate notice of the registration. This is based on the following facts:

"1. The [mother] was sent notice of the registration by certified mail, return receipt requested. The return receipt appears to have been delivered to the [mother]’s address and some person signed for it. (Doc. 13).

"2. The [mother] failed to present any affirmative evidence, either by testimony or affidavit, in support of her objection.

"3. The [father] sent an amended petition to the [mother] and her attorney on August 13, 2021, via the AlaCourt filing system.

"4. The [mother's] attorney filed two pleadings with the Court, albeit one of them was an objection to the service.

"5. The [mother's] attorney appeared in-person at the proceeding.

"6. The [mother] was present for the proceedings that led to the foreign judgment that is being registered, i.e., this is not a default.

"7. The [mother] has appeared in this Court in this case in a prior child custody proceeding.

"Upon due consideration, it is hereby ORDERED as follows:

"A. The [mother's] objection to the registration of the Tennessee order is DENIED.

"B. The [father's] ‘Petition to Register Tennessee Custody Order’ is GRANTED.

"C. Exhibit ‘A’ to the [father's] petition is registered with this Court and shall be given full faith and credit as if a lawful order from this Court. (Doc. 3).

"D. The [father's] ‘Petition to Establish Child Support’ is re-set for a hearing on December 9, 2021, at 2:30 p.m."

(Capitalization in original.) The mother filed her mandamus petition with this court on December 9, 2021.

Standard of Review

"The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ‘ " ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ " ’ Ex parte Inverness Constr. Co., 775 So. 2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So. 2d 371, 374 (Ala. 1996) ); Ex parte Pfizer, Inc., 746 So. 2d 960, 962 (Ala. 1999)."

Ex parte Children's Hosp. of Alabama, 931 So. 2d 1, 5-6 (Ala. 2005).

Discussion

In her mandamus petition, the mother argues that the trial court's November 18, 2021, order registering the Tennessee child-custody order is void for lack of service upon her. The mother maintains that the father did not prove that he had properly served the mother with notice of the registration petition, that the trial court erred in shifting the burden to the mother to prove lack of proper service, that her attorney did not accept service on her behalf, and that she did not waive proper service. Our resolution of the mother's first argument is dispositive.

Section 30-3B-305(b)(2), Ala. Code 1975, provides that, once a court of this state receives a request to register a foreign child-custody determination, along with the appropriate documents to support that request, the registering court shall "[s]erve notice upon the persons named pursuant to subsection (a)(3) [of § 30-3B-305 ] and provide them with an opportunity to contest the registration in accordance with this section." Section 30-3B-108, Ala. Code 1975, provides, in pertinent part:

"(a) Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.

"(b) Proof of service may be made in the manner prescribed by the law of this state."

Rule 4, Ala. R. Civ. P., provides for service via certified mail. Rule 4(i)(2)(B)(ii) authorizes an attorney for a complaining party to send process to a defendant through certified mail, return receipt requested. See, e.g., Ex parte Jenkins, 318 So. 3d 515, 519 (Ala. Civ. App. 2020). Rule 4(i)(2)(C) sets forth the standard for proving that service has been made by certified mail as follows:

"Service by certified mail shall be deemed complete and the time for answering shall run from the date of delivery to the named addressee or the addressee's agent as evidenced by signature on the return receipt. Within the meaning of this subdivision, ‘agent’ means a person or entity specifically authorized by the addressee to receive the addressee's mail and to deliver that mail to the addressee. Such agent's authority shall be conclusively established when the addressee acknowledges actual receipt of the summons and complaint or the court determines that the evidence proves the addressee did actually receive the summons and complaint in time to avoid a default. An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within time to avoid a default. In the case of an entity included in one of the provisions of Rule 4(c), ‘defendant,’ within the meaning of this subdivision, shall be such a person described in the applicable subdivision of 4(c)."

(Emphasis added.)

In Cain v. Cain, 892 So. 2d 952 (Ala. Civ. App. 2004), this court examined a case in which a former wife had attempted to serve a contempt petition on her former husband by certified mail addressed to his employer. Court records indicated that the petition and a summons, along with a notice that a hearing was scheduled for July 19, 2002, had been mailed on June 21, 2002, and delivered on July 1, 2002. On July 1, 2002, the former husband sent a letter to the judge assigned to the case requesting a continuance of the hearing.

On July 16, 2002, an attorney appeared on behalf of the former husband and moved to dismiss the case on the ground that an unauthorized person had accepted service for the former husband....