Opinion
CL-2023-0309
06-23-2023
Ex parte Zachariah Carl Sullivan v. Zachariah Carl Sullivan) (In re: Kameron Golden Sullivan
PETITION FOR THE WRIT OF MANDAMUS (Jefferson Circuit Court, DR-22-901567)
MOORE, JUDGE.
On December 13, 2022, Kameron Golden Sullivan ("the mother") filed in the Jefferson Circuit Court ("the trial court") a complaint requesting a legal separation from Zachariah Carl Sullivan ("the father"). The complaint included a claim for an order disposing of the custody of the parties' child, E.G.S. ("the child"). On January 18, 2023, the father filed a motion to dismiss the complaint. On March 28, 2023, the trial court entered an order ("the March 28, 2023, order") denying the motion to dismiss. The father petitions this court for a writ of mandamus directing trial court to vacate the March 28, 2023, order and to enter a new order granting the motion. We dismiss the petition in part and grant the petition in part.
Background
The materials submitted by the parties to this court show the following facts and procedural history. The father, who is an officer in the United States Air Force, and the mother married in Alabama in 2019. The child was born on April 20, 2021, while the parties were residing in Texas, where the father was stationed at that time. On September 25, 2021, the father was reassigned, and the family moved to his new station in North Dakota, where they resided together until June 6, 2022, when the mother relocated to Alabama. Before she left, the parties agreed that the child would remain in North Dakota with the father, that the father would travel with the child to Ohio to attend a family wedding, and that the father would then bring the child to Alabama to be with the mother. The father followed that itinerary and eventually brought the child to Alabama on June 16, 2022.
The parties dispute the circumstances that led to the parties' separation. The father maintains that he was under the assumption that the mother was only temporarily visiting her family in Alabama and that the child was only joining her for that temporary visit. He assumed that both the mother and the child would return to North Dakota after a short period. The mother contends that she intended to relocate with the child permanently to escape domestic violence being committed upon her by the father. The mother claims that she "allowed" the father to keep the child temporarily only so that the child could attend the wedding, after which the child would join her permanently in Alabama. Regardless of that disagreement, it is undisputed that the mother and the child have resided together in Alabama since June 16, 2022, and that the father continues to reside in North Dakota.
On November 16, 2022, the father commenced a civil action for a legal separation from the mother ("the North Dakota action") in the North Central Judicial District Court of North Dakota ("the North Dakota court"). On November 28, 2022, the summons and complaint issued in the North Dakota action were personally served on the mother at an address in Trussville. The mother did not immediately file an answer to the complaint filed in the North Dakota action. On December 18, 2022, the mother commenced an action in the trial court ("the Alabama action") seeking a legal separation.
On January 18, 2023, the mother filed a motion in the Alabama action requesting pendente lite custody of the child and pendente lite child support. That same date, the father filed a motion to dismiss the Alabama action. In that motion, the father informed the trial court of the pending North Dakota action and that the father had retained counsel in Alabama for the purpose of having the complaint in the Alabama action dismissed. The father moved to dismiss the Alabama action because "there was an already ongoing divorce [sic] proceeding in North Dakota before [the mother] filed her complaint" and because, he asserted, he was " being prejudiced by [the mother's] filing of another ... proceeding in the State of Alabama." (Emphasis in original.)
The trial court scheduled the mother's motion for pendente lite relief and the father's motion to dismiss for a hearing on March 8, 2023. The parties did not provide this court with a transcript of that hearing, but they agree that the father attended that hearing via Zoom videoconferencing technology and that the trial court heard only arguments from counsel without receiving any evidence. Following that hearing, the trial court entered an order requiring the parties to brief the issues of domicile and residency of the parties, as well as other issues. On March 20, 2023, the father filed a brief in the trial court in which he asserted that the Alabama action should be dismissed because (1) the North Dakota action had been commenced first, (2) the trial court lacked personal jurisdiction over him, and (3) the trial court lacked subject-matter jurisdiction over the Alabama action under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), Ala. Code 1975, § 30-3B-101 et seq. The mother filed a brief setting forth her position as to the domicile and residence of the parties and arguing that the trial court had jurisdiction over the Alabama action pursuant to the UCCJEA.
On March 28, 2023, the trial court entered an order denying the father's motion to dismiss. The trial court determined that it had concurrent jurisdiction with the North Dakota court over the claims asserted in the mother's complaint and that, based on the holdings in Ex parte Buck, 291 Ala. 689, 287 So.2d 441 (1973), and Ex parte Rankin, 284 So.3d 933 (Ala. Civ. App. 2019), it could exercise that jurisdiction even though the North Dakota action was proceeding. The father timely filed a petition for the writ of mandamus with this court on May 8, 2023.
Issues
In his mandamus petition, the father argues that the trial court erred in denying his motion to dismiss the Alabama action because, he says, it lacked personal jurisdiction over him and it failed to apply the UCCJEA when deciding whether it had subject-matter jurisdiction over the child-custody proceeding initiated by the mother's complaint.
We do not address the personal-jurisdiction argument because we hold that the father has waived the defense of lack of personal jurisdiction. In the January 18, 2023, motion to dismiss, which was the first motion filed by the father in the Alabama action, the father argued only that the trial court should dismiss the complaint because the North Dakota court had acquired jurisdiction over the case before the mother filed the complaint in the Alabama action. The father's motion was, in substance, a motion to dismiss for lack of subject-matter jurisdiction filed pursuant to Rule 12(b)(1), Ala. R. Civ. P. See Cherry, Bekaert &Holland v. Brown, 582 So.2d 502, 504 (Ala. 1991) (treating a motion to dismiss a complaint filed in an Alabama court that was based on ground that claims asserted in complaint were pending in a previously filed North Carolina action as a motion to dismiss for lack of subject-matter jurisdiction). The father did not raise in the January 18, 2023, motion to dismiss any argument that the complaint should be dismissed for lack of personal jurisdiction over him. A defense of lack of personal jurisdiction is waived if it is omitted from a first motion seeking dismissal of a complaint based on the ground of lack of subject-matter jurisdiction or some other Rule 12(b) defense. See Rule 12(h)(1), Ala. R. Civ. P.
The father may have asserted the defense of lack of personal jurisdiction to the trial court during the March 8, 2023, hearing, and he certainly asserted the defense in his March 20, 2023, brief to the trial court. In either event, the trial court could not consider that defense. Under Rule 12(g), Ala. R. Civ. P., once a party has filed a Rule 12(b) motion to dismiss omitting the defense of lack of personal jurisdiction, the party may not thereafter make a motion or objection based on that omitted defense. In other words, once the defense of lack of personal jurisdiction has been waived under Rule 12(h)(1), it cannot be revived through a supplemental motion. See Vick v. Vick, 675 So.2d 1324 (Ala. Civ. App. 1996) (holding that former wife had waived defense of lack of personal jurisdiction by failing to include that defense in her original Rule 12(b) motion and that she could not raise the defense in a subsequent motion filed at a hearing relating to the propriety of order purporting to grant original motion). By virtue of the waiver, the trial court now has personal jurisdiction over the father, and any argument regarding whether the father has sufficient minimum contacts to justify the trial court's exercise of personal jurisdiction over him is now moot. See generally K.L.R. v. K.G.S., 201 So.3d 1200, 1203 (Ala. Civ. App. 2016) (discussing mootness). We, therefore, dismiss that portion of the father's mandamus petition seeking relief from the March 28, 2023, order on the ground of lack of personal jurisdiction, Ex parte Buckner, 73 So.3d 700, 702 (Ala. Civ. App. 2011), and we limit our discussion solely to the issue whether the mandamus petition should be granted based on the trial court's alleged error in failing to apply the UCCJEA.
Standard of Review
"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 McNaughton, 728 So.2d 592, 594 (Ala. 1998).
Analysis
As noted, the father originally claimed in the January 18, 2023, motion to dismiss that the trial court could not exercise jurisdiction over the Alabama action because another case involving the same parties and the same claims was pending in the North Dakota court at the time the mother commenced the Alabama action. In Ex parte Buck, our supreme court held that, when a court of a foreign state and a court of this state have concurrent jurisdiction over a divorce and child-custody action, the fact that an action was commenced first in the foreign state does not abate the action in Alabama. In Ex parte Rankin, this court followed Ex parte Buck in holding that the pendency of a Tennessee divorce action, which had been commenced by the husband before the wife commenced her divorce action in the Elmore Circuit Court, did not deprive the Elmore Circuit Court of jurisdiction over the wife's divorce action. The trial court relied on the decisions in Ex parte Buck and Ex parte Rankin in determining that it could exercise jurisdiction over the Alabama action. However, as pointed out by the father, neither of those opinions consider the effect of the UCCJEA in those circumstances. Ex parte Buck was decided in 1973, long before the UCCJEA was first adopted in 1999. See Ala. Acts 1999, Act No. 99-438, § 1. Ex parte Rankin concerned a divorce action in which child custody was not at issue, so the UCCJEA did not apply.
The UCCJEA now governs the subject-matter jurisdiction of Alabama courts over child-custody proceedings. See A.M.H. v. D.E.H., [Ms. 2210283, Nov. 18, 2022] ___So. 3d__ (Ala. Civ. App. 2022). "[W]hen the UCCJEA is implicated, a trial court, in order to satisfy itself that it has subject-matter jurisdiction, should consult the UCCJEA and follow the procedures outlined therein, regardless of whether the parties have specifically directed the trial court to applicable sections of the UCCJEA." Id. at. Section 30-3B-206(b), Ala. Code 1975, a part of the UCCJEA, provides that, except in circumstances not applicable to this case, an Alabama court with knowledge that a custody proceeding has been commenced in a court of another state with proper jurisdiction shall stay its proceedings and communicate with the court of the other state and that, if the foreign court "does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding."
In this case, the father informed the trial court in his motion to dismiss filed on January 18, 2023, that he had commenced the North Dakota action, and the parties advised the trial court that the North Dakota action encompassed a child-custody proceeding. In his brief to the trial court, the father asserted that the North Dakota court had proper jurisdiction over the initial child-custody determination because North Dakota was the home state of the child, see N.D. Cent. Code Ann. § 14-14.1-12 &§ 14-14.1-01(6), and because Alabama was not the home state of the child as defined by Ala. Code 1975, § 30-3B-102(7). See Ex parte Siderius, 144 So.3d 319, 326 (Ala. 2013) (citing Official Comment to Ala. Code 1975, § 30-3B-201, ¶ 1) (noting that the UCCJEA prioritizes home-state jurisdiction over other jurisdictional bases). In her brief to the trial court, the mother argued that the trial court had jurisdiction to make the initial child-custody determination under § 30-3B-201(a)(1) because Alabama had supplanted North Dakota as the home state of the child after she and the child relocated to Alabama. The mother alternatively argued that the trial court should exercise jurisdiction over the Alabama action because it was a more convenient forum under Ala. Code 1975, § 30-3B-207.
Pursuant to § 30-3B-206, the trial court was required to stay its proceedings and to ascertain whether it had home-state jurisdiction to make the initial child-custody determination regarding the child under § 30-3B-201(a)(1) or whether the North Dakota court had home-state jurisdiction under its version of the UCCJEA. The trial court did not stay its proceedings or apply § 30-3B-201(a)(1) to determine which court had home-state jurisdiction to make the initial child-custody determination. In his mandamus petition, the father essentially asks this court to determine that the North Dakota court has home-state jurisdiction and to order the trial court to dismiss the Alabama action on that basis. The office of the writ of mandamus is to compel a lower court to take such judicial action as it is required to do, not for the appellate court to usurp the lower court's role and perform the action for the lower court. See Ex parte U.S. Bank Nat'l Ass'n, 148 So.3d 1060 (Ala. 2014). It would be inappropriate for this court, a court of review, to perform the UCCJEA analysis in the first instance.
Moreover, as the mother correctly points out in her response to the mandamus petition, the UCCJEA does not require automatic dismissal of a child-custody proceeding upon a determination that a foreign state has home-state jurisdiction. Following the procedure set forth in the UCCJEA, as detailed by this court in A.M.H., supra, if the trial court determines that the North Dakota court is properly exercising home- state jurisdiction over the case pursuant to the North Dakota version of the UCCJEA, the trial court, upon application of the mother, is required to communicate with the North Dakota court regarding the jurisdictional conflict and to ascertain whether the North Dakota court will issue an order declining to exercise its jurisdiction so that the trial court can exercise its jurisdiction as a "more appropriate forum" under § 30-3B-201(a)(2). As set forth in § 30-3B-206, the trial court should dismiss the Alabama action only if the North Dakota court "does not determine that [the Alabama court] is a more appropriate forum."
In its March 28, 2023, order, the trial court indicated that it had jurisdiction over the Alabama action and that it would exercise that jurisdiction concurrently with the North Dakota court. Since the entry of that order, the trial court has communicated with the North Dakota court, and the North Dakota court has stayed its proceedings to ascertain its own jurisdiction and to consider which forum is more appropriate. Considering the procedural posture of this case, we conclude that the appropriate remedy is to direct the trial court to reconsider the motion to dismiss by determining its own jurisdiction under the UCCJEA and, to the extent that the trial court has not already done so, to perform all of its other statutory duties as required by the UCCJEA in resolving the jurisdictional conflict with the North Dakota court.
Conclusion
Based on the foregoing, the father's petition for a writ of mandamus is dismissed insofar as it seeks relief based on the trial court's alleged lack of personal jurisdiction over the father. We grant the petition insofar as it seeks an order directing the trial court to reconsider the motion to dismiss and to take such other actions as are consistent with the UCCJEA and this opinion.
PETITION DISMISSED IN PART AND GRANTED IN PART; WRIT ISSUED.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.