Ramsey v. Ramsey

995 So.2d 881

Patrick S. RAMSEY v. Carla R. RAMSEY.

2060661.

Court of Civil Appeals of Alabama.

May 23, 2008.

Michael A. Anderson of Shaw-Anderson, LLC, Birmingham, for appellant.

Garrick L. Stotser and Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham, for appellee.

On Application for Rehearing.

THOMAS, Judge.

The no-opinion order of affirmance of January 18, 2008, is withdrawn, and the following is substituted therefor.

Patrick S. Ramsey ("the father") and Carla R. Ramsey ("the mother") were married in May 1994. The father is an obstetrician and a professor of obstetrics; the mother was not employed at the time of the parties' separation on July 23, 2006. The parties lived in Birmingham from June 1998 until the date the parties separated. Two children were born of the marriage, one in 1999 and one in 2004.

The parties had a oral disagreement in late July 2006, after which the mother indicated her intent to take herself and the children on a trip to Nebraska to visit her parents. The father acquiesced in this plan because he was to attend a medical conference in Denver, Colorado, during the same period. While in Nebraska, the mother met with an attorney and decided to institute an action seeking a legal separation from the father. She arrived at the father's Denver-area hotel on August 1, 2006, and presented him with a document entitled "Stipulation as to Temporary Matters," which the father and the mother both signed that evening. The stipulation addressed child-custody, child-support, and spousal-support matters. The mother filed the stipulation in the District Court of Lincoln Nebraska ("the Nebraska trial court"); the Nebraska trial court approved the stipulation.

After the father returned to Alabama and sought the advice of counsel, he instituted a divorce action in the Jefferson Circuit Court ("the Alabama trial court") on August 18, 2006. The mother filed a "Motion to Defer Jurisdiction" in the Alabama trial court on September 14, 2006, in which she relied upon § 30-3B-207(a), Ala. Code 1975, a portion of Alabama's version of the Uniform Child Custody Jurisdiction and Enforcement Act (the "UCCJEA"). Section 30-3B-207 permits a trial court having jurisdiction under the UCCJEA to decline to exercise that jurisdiction on the basis that it is an inconvenient forum for the child-custody litigation. The mother argued in her motion to defer jurisdiction that the father had entered into the stipulation regarding temporary matters in the Nebraska litigation; that the older child of the parties had been enrolled in school in Nebraska, pursuant to the stipulation that the mother had long-standing ties to Nebraska; that the parties had no significant ties to Alabama, which she averred was demonstrated by the father's efforts to become employed in another location. Based on these facts, the mother said, the Alabama trial court should decline to exercise jurisdiction. The mother further noted in her motion that § 30-3B-206, Ala. Code 1975, required the Alabama trial court to communicate with the Nebraska trial court to determine which state would be the more appropriate forum for the child-custody litigation.

Meanwhile, the father had moved to dismiss the Nebraska action. The Nebraska trial court held a hearing on the father's motion, after which it entered the following order:

"The Court recognizes that it does not have jurisdiction to proceed in a juvenile custody determination unless the requirements of [Neb.Rev.Stat. § 43-1226] et seq. are complied with. The Court, in this case, proceeds under [Neb.Rev.Stat. § 43-1241], and determines that it will continue to exercise jurisdiction over the children until an order is obtained from the state of Alabama indicating that it intends to exercise jurisdiction. If the state of Alabama proceeds, it is clear to this Court that that would be the home state of the minor children and would be vested with jurisdiction to make the determination regarding the children's custody. Should the Alabama court decline to proceed in his matter and determine that Nebraska is the more convenient forum, the Court would have no difficulty in proceeding with the action brought by the [mother]. The Court does not believe that the Stipulation of the parties is sufficient to grant jurisdiction to the Court if the Alabama court decides to proceed."

The father objected to the mother's motion to defer jurisdiction. He argued that the parties and the children did have a significant connection with Alabama and "that ... `overwhelming' evidence is available in the state of Alabama concerning the children's care protection, training, and personal relationships." In the affidavit he attached to his motion, the father recounted the activities in which the children were involved, mentioned friends that the children had in the Birmingham area, and noted that the children's dentist and pediatrician were both located in the Birmingham area.

In response to the father's objection to her motion to defer jurisdiction, the mother filed an affidavit in support of her motion. In that affidavit, the mother indicated that the names of the children's "friends" that the father recounted in his affidavit consisted in large part of the list of names on the children's school or activity rosters. She also reported that the parties' older child was adapting well to the new school in which he had been enrolled in Nebraska.

On December 19, 2006, the Alabama trial court entered a judgment deferring jurisdiction to the Nebraska trial court. That order, in its entirety, reads as follows:

"THIS cause came on for consideration by the Court on the [mother's] Motion to Defer Jurisdiction in the within matter. The Court, having considered said motion, as well as heard argument from the attorneys for both parties, finds that the [father] has voluntarily submitted himself to the jurisdiction of the District Court of Lincoln County, Nebraska and does hereby enter the following Order. It is, therefore,

"ORDERED, ADJUDGED and DECREED as follows:

"(1) The [mother's] Motion to Defer Jurisdiction is granted.

"(2) Jurisdiction in the within matter is deferred to the District Court of Lincoln County, Nebraska.

"(3) Court costs accrued in the above styled matter are hereby taxed as paid."

The father appeals, arguing that the Alabama trial court's determination that it should defer jurisdiction of the child-custody litigation to the Nebraska trial court was plainly and palpably wrong and an abuse of discretion, that the Alabama trial court erred by failing to communicate with the Nebraska trial court regarding which court would be the more appropriate forum, as required by § 30-3B-206(b), and that the Alabama trial court should have considered the option of "divisible divorce." The mother, while conceding that Alabama has home-state jurisdiction under the UCCJEA, argues that the father's assent to the stipulation was an agreement that the Nebraska trial court could take jurisdiction over the custody litigation and that the Alabama trial court's decision to defer jurisdiction was therefore appropriate. She further argues that the father never requested that the Alabama trial court communicate with the Nebraska trial court and that, even if the failure of the Alabama court to so communicate was error, it was harmless error. Finally, the mother argues that the father's failure to ask the Alabama trial court to retain jurisdiction over the parties' divorce action while deferring jurisdiction as to the custody litigation to the Nebraska trial court should prevent him from successfully arguing that the Alabama trial court's judgment should be reversed for failing to do so.

As the father points out, and as the mother concedes, Alabama has home-state jurisdiction over the child-custody determination under Alabama's version of the UCCJEA. That is, Alabama is "[t]he state in which [the] child[ren] lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding." § 30-3B-102(7). Section 30-3B-201(a) provides, in part:

"[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."

A court having jurisdiction to make a child-custody determination may nevertheless decline to exercise that jurisdiction "if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." § 30-3B-207(a). The determination whether it is an inconvenient forum under the UCCJEA requires a trial court to consider several enumerated factors, which are outlined in § 30-3B-207(b):

"(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

"(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

"(2) The length of time the child has resided outside this state "(3) The distance between the court in this state and the court in the state that would assume jurisdiction;

"(4) The relative financial circumstances of the parties;

"(5) Any agreement of the parties as to which state should assume jurisdiction;

"(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

"(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to...