Opinion
CL-2022-0930
12-02-2022
EX PARTE V.M. (In re: T.K. v. V.M.)
On April 18, 2022, T.K. ("the presumed father") filed in the Bessemer Division of the Jefferson Juvenile Court ("the juvenile court") a verified complaint seeking an adjudication of his paternity of R.L.T.K. ("the child") based on his allegation that he was a presumed father of the child, pursu- ant to Ala. Code 1975, § 26-17-204(a)(5). He alleged that he had received the child into his home and had held out the child as his natural child. In his complaint, the presumed father also sought an award of joint custody of, or visitation with, the child. Contemporaneously, the presumed father filed an unverified emergency motion for custody, in which he alleged that the child’s mother, V.M. ("the mother"), "has communicated that she is in the process of relocation … out of [the] state [of Alabama] to Oregon … with the intent to remain there" and that the mother "is unstable physically and mentally and is not fit to properly care for the child[ ]." On May 6, 2022, a juvenile-court referee held a hearing, at which the presumed father testified; following that hearing, the referee entered an order awarding the presumed father pendente lite custody of the child. See Ala. Code 1975, § 12-15-106 (permitting the appointment of a juvenile-court referee to handle certain juvenile and child-support cases). In that order, the referee stated that "the parties and [the] child[] resided in Alabama for approximately the past three years, and the mother left the state with the child[ ] following the filing of [the presumed father’s complaint]." The juvenile-court judge ratified the referee’s order on the same day that it was entered.
The presumed father’s complaint also sought an adjudication of the paternity of the presumed father relating to another child, V.C.V.C. However, V.C.V.C.’s mother, V.M., presented evidence indicating that paternity of V.C.V.C. had been established in another man by an Oregon court. In his answer to the mother’s mandamus petition, the presumed father conceded that he no longer seeks an adjudication of his paternity of V.C.V.C. and indicated that he will file a motion to have his claim regarding V.C.V.C. dismissed. Based on the presumed father’s concession, we will not address any arguments relating to the presumed father’s claims regarding the paternity or custody of V.C.V.C. in this opinion.
Although, in the complaint, the presumed father listed an address in Bessemer as the mother’s address, the mother was served on April 24, 2022, by a private process server in the State of Oregon. Thereafter, in May 2022, the mother filed a motion to dismiss the presumed father’s complaint, which she subsequently amended and verified, arguing that she and the child were residents of Oregon and not Alabama and that they had been visiting Alabama in April 2022 until they returned to Oregon on April 16, 2022. The mother attached to her motion the child’s Oregon birth certificate, a lost-baggage claim form indicating that the lost-baggage claim had arisen on April 16, 2022, and a flight confirmation for a flight from Birmingham to Oregon on April 16, 2022.
The referee held a hearing on the mother’s motion to dismiss on June 10, 2022. At that hearing, the parties testified and presented documentary evidence. In an order entered on the same day as the hearing, the referee stated: "Based on testimony and evidence, the court finds that Oregon is the home state of the … child … and this court lacks subject-matter jurisdiction over that child’s custody under the [Uniform Child Custody Jurisdiction and Enforcement Act, Ala. Code 1975, § 30-3B-101 et seq.]." Thus, the referee dismissed the presumed father’s complaint. The juvenile-court judge ratified the referee’s order on June 11, 2022.
On June 16, 2022, the presumed father filed a motion for a rehearing of the referee’s order, pursuant to Ala. Code 1975, § 12-15-106(e) and § 12-15-106(f), a part of the Alabama Juvenile Justice Act, Ala. Code 1975, § 12-15-101 et seq. In that motion, the presumed father alleged that the evidence at the hearing before the referee had "revealed that the [mother and the child] had been Alabama residents for six months prior to the [presumed father’s] filing his [complaint]." The juvenile-court judge granted the presumed father’s motion for a rehearing and set the rehearing for July 21, 2021.
The presumed father’s motion also objected to the matter being heard before the referee. However, any objection to proceeding before a referee must be made before the commencement of the hearing before the referee. See Ala. Code 1975. § 12-15-106(d). After the referee held a hearing and entered an order, the correct procedure was to request a rehearing before the juvenile court within 14 days of the entry of the written findings and recommendations of the referee, pursuant to § 12-15-106(e) and 12-15-106(f). Notably, in this case, the Juvenile-court judge’s ratification of the referee’s order before the time for requesting a rehearing had expired did not divest the parties of the right to seek rehearing. See Ex parte Quarles, 197 So. 3d 499, 502 (Ala. Civ. App. 2015) ("A referee’s findings and recommendations can become a judgment of the juvenile court when they are ratified by a juvenile-court judge, see § 12-15-106(g), but, even in that instance, if a party has promptly and sufficiently applied for a rehearing, § 12-15-106(e) grants that party an unqualified statutory right to a rehearing.").
On July 8, 2022, the presumed father filed a motion for a judicial conference between the juvenile-court judge and the Oregon court pursuant to Ala. Code 1975, § 30-3B-206, a part of the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), Ala. Code 1975, § 30-8B-101 et seq., and which requires the courts of states in which simultaneous custody proceedings are pending to communicate. In that motion, the presumed father alleged that the mother had initiated an action in an Oregon court seeking custody of the child and that the mother had initiated an action in an Alabama circuit court to register and enforce an order entered in the Oregon action. The mother responded to the presumed father’s motion by agreeing to the need for a conference between the Oregon court and the juvenile-court judge pursuant to the UCCJEA.
The materials appended to the mandamus petition and the answer fail to include any order entered by an Oregon court or any filings from any action initiated in an Alabama court to register such an order.
According to the unrefuted allegations made by the mother in her mandamus petition, at the rehearing on July 21, 2022, the juvenile-court judge did not take any sworn testimony or receive any evidence. In addition, according to the mother’s petition, although the June 10, 2022, hearing before the referee had been recorded, the juvenile-court judge had neither ascertained whether that record was adequate nor reviewed it, in contravention of § 12-15-106(f). Instead, after receiving arguments of counsel and soliciting unsworn responses from the parties to some questions, the juvenile-court judge entered an order on July 23, 2022, in which she implicitly concluded that the juvenile court had subject-matter jurisdiction to proceed with the presumed father’s paternity and custody action. In the July 23, 2022, order, the juvenile-court judge stated that the presumed father’s counsel had argued that "the mother has resided here since 2019" and that, "although the … child was born in Oregon, the mother returned to Alabama after the birth of the child and resumed living with the [presumed] father." The July 23, 2022, order further states that the mother’s attorney argued that "Oregon is the [mother’s] home state." In the order, the juvenile-court judge commented that "in order to be a residence [sic] of Oregon one must reside there 12 consecutive months" and concluded that "the [mother] has resided in Alabama for more than 180 days an[d] not 12 consecutive months in Oregon." The July 23, 2022, order does not indicate when the child, who was born in Oregon in August 2020, began residing in Alabama or determine his home state under Ala. Code 1975, § 30-3B-102(7), which defines the term "home state." The order entered by the juvenile-court judge also contains the following provision: "The plaintiff is under a strict order not to leave the state with the minor child. If she does[,] this court will notify the F[ederal] B[ureau of] I[nvestigation (‘FBI’)]."
In his answer to the mother’s mandamus petition, the presumed father specifically states that he does not dispute the procedural facts set out in the mother’s petition. We therefore accept those conceded procedural facts as true. See Ex parte Davis, 930 So. 2d 497, 501 (Ala. 2005) (accepting as true the facts conceded in the answer to a petition for the writ of mandamus).
On July 27, 2022, the presumed father filed an emergency motion seeking to hold the mother in contempt and for pendente lite custody. In that motion, he alleged that the mother had left the state with the child in contravention of the July 23, 2022, order prohibiting her from doing so. The juvenile-court judge entered an order on July 28, 2022, granting the presumed father’s motion, stating in that order that the July 23, 2022, order was intended to prohibit the defendant, who was the mother, and not the plaintiff, who was the presumed father, from leaving the state with the child. That order also stated that the juvenile-court judge intended to notify the FBI about the mother’s actions.
The presumed father filed a motion for a pickup order on August 1, 2022, in which he sought aid in securing the custody of the child from the mother, both of whom were then in Oregon. The mother objected to the presumed father’s motion, complaining that the language of the July 23, 2022, order had not restrained her from leaving the state with the child. The juvenile-court judge entered the requested pickup order on August 2, 2022, and she corrected that pickup order on August 5, 2022. In both the August 2, 2022, and August 5, 2022, pickup orders, the juvenile-court judge awarded the presumed father pendente lite custody of the child. In the August 5, 2022, pickup order, the juvenile-court judge found the mother in contempt.
On August 5, 2022, the mother filed a motion seeking reconsideration of the July 23, 2022, order insofar as it implicitly concluded that the juvenile court had jurisdiction under the UCCJEA. In that motion, the mother specifically argued that the juvenile-court judge had failed to properly comply with § 12-15-106(f), had failed to properly apply the UCCJEA, and had lacked temporary emergency jurisdiction under Ala. Code 1975, § 30-3B-204, because, she stated, she and the child had not been in Alabama on the date that the presumed father filed his complaint. The mother also filed a motion to set aside the pickup orders entered by the juvenile-court judge. In that motion, she argued that the juvenile-court judge could not enter the pickup orders because the presumed father’s August 1, 2022, motion had failed to comply with Rule 65, Ala. R. Civ, P., "as it seeks injunctive relief without being accompanied by an affidavit." In addition, she contended that, because the child had been born out of wedlock, she was the child’s only legal custodian pursuant to Alabama law. Citing Ex parte Russell, 911 So. 2d 719 (Ala. Civ. App. 2005), the mother further argued in her motion that the juvenile-court judge had violated her due-process rights because the judge had not held a hearing and that the judge could not modify custody of the child, even temporarily, without affording her a hearing. On August 8, 2022, the juvenile-court judge issued separate orders denying the mother’s motion to reconsider and her motion to set aside the pickup orders.
Based on assertions in the mother’s motion, the juvenile-court judge had apparently indicated a belief that she was exercising temporary emergency jurisdiction under Ala. Code 1975, § 30-3B-204. As the mother correctly states, a court may not exercise temporary emergency jurisdiction under the UCCJEA unless the subject child is in the State of Alabama at the time the action is initiated and the child either has been abandoned or the child, a sibling, or a parent has been threatened with or is subject to mistreatment or abuse. The materials before this court indicate that the child was no longer in Alabama when the presumed father initiated his paternity and custody action.
Rule 65(b), Ala. R. Civ. P., requires that a party seeking a temporary restraining order "without written or oral notice to the adverse party or that party’s attorney" provide a verified complaint or an affidavit setting out the "immediate and irreparable injury, loss, or damage [that would] result to the applicant before the adverse party or that party’s attorney can be heard in opposition" and "certif[ying] to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required." However, the presumed father’s motion was served on the mother’s attorney and did not seek relief without notice to the mother or her attorney.
The mother filed her petition for the writ of mandamus with this court on August 22, 2022. In the presumed father’s answer to the mother’s petition, he informed this court that a UCCJEA conference had been scheduled for September 14, 2022, for the juvenile-court judge to discuss the pending matters with the Oregon court. Although the juvenile-court judge failed to attend that conference because of scheduling conflicts, the mother provided this court with a letter from the Oregon court outlining the testimony taken that day and indicating that the Oregon court considered Oregon to be the home state of the child. The juvenile-court judge scheduled another UCCJEA conference and has since provided this court with an order entered on September 29, 2022, stating her "view of the evidence and testimony presented in Alabama and how the evidence establishes that Alabama was in fact the home state of the child at the time of the filing of the [presumed father’s complaint]." We permitted the mother to file a supplement to her petition, which she did; the presumed father, although invited to respond to the mother’s supplement, did not take the opportunity to do so.
In her petition and supplement, the mother argues generally that the juvenile court lacked jurisdiction over the presumed father’s paternity and custody action under the UCCJEA and that the juvenile-court judge’s pickup orders were entered in violation of the mother’s due-process rights and are therefore void. Although her petition was not filed within 14 days after the entry of the July 23, 2022, order implicitly determining that the juvenile court had jurisdiction over the presumed father’s paternity and custody action and therefore implicitly denying her motion to dismiss, certain arguments in the mother’s petition challenge the juvenile court’s subject-matter jurisdiction over the presumed father’s action, and we may therefore consider those arguments despite the fact that the petition is pre- sumptively untimely. See Ex parte K.R., 210 So. 3d 1106, 1112 (Ala. 2016) (holding that an appellate court may consider an otherwise untimely petition for the writ of mandamus when the argument asserted goes to the jurisdiction of the trial court to enter its order); Ex parte J.M.S., 303 So. 3d 155, 157 (Ala. Civ. App. 2020); see also Rule 21(a)(3), Ala. R. App. P. (providing that the presumptively reasonable time for filing a petition for the writ of mandamus "shall be the same as the time for taking an appeal"). Likewise, we may also consider the mother’s arguments pertaining to the July 28, 2022, pendente lite custody order and the August 2, 2022, and August 5, 2022, pickup orders entered by the juvenile-court judge despite their presumptive untimeliness because she contends that those orders were entered without affording her due process and are therefore void. See Ex parte M.F.B., 228 So. 3d 460, 462 (Ala. Civ. App. 2017) (concluding that petitions in which a party asserts a due-process violation are encompassed in the holding of Ex parte K.R. regarding otherwise untimely mandamus petitions).
The mother also argues in her petition that the juvenile-court judge failed to communicate with the Oregon court as required by Ala. Code 1975, § 30-3B-110 and § 30-3B-206. Because the juvenile-court judge has since communicated with the Oregon court through a UCCJEA conference, we consider that argument to have become moot. Ex parte Taylor, 335 So. 3d 1159, 1161 (Ala. Civ. App. 2021) (explaining that when a court performs the action made the basis of the petition for the writ of mandamus, the petition is rendered moot).
[1] The mother also briefly challenges the juvenile-court judge’s contempt adjudication contained in the August 5, 2022, pickup order because, as she correctly states, the juvenile-court judge could not have held her in contempt without first holding an evidentiary hearing. See Rule 70A(c)(2), Ala. R. Civ. P. (providing the procedure to be utilized in the disposition of constructive-contempt proceedings); Ex parte Bankhead, 200 Ala. 102, 102, 75 So. 478 (1917) (explaining that, before a court may punish a constructive contempt, "the offending party should have notice of the character and nature of the charge and be given an opportunity to answer and defend himself"); Thompson v. Thompson, 649 So. 2d 208, 210 (Ala. Civ. App. 1994) ("A person cannot be found in [constructive] contempt without a hearing."). The mother admits that the proper method of challenging a contempt finding is through an appeal and not through a petition for the writ of mandamus. See Rule 70A(g)(2), Ala. R. Civ. P. (providing that an adjudication of contempt is renewable by an appeal). Although we could exercise our discretion to treat that portion of the mother’s petition challenging the contempt finding as an appeal, see J.M.S. v. State ex rel. Y.R.S., 216 So. 3d 1257, 1258 (Ala. Civ. App. 2016) (treating a petition for the writ of mandamus seeking review of a contempt adjudication as an appeal), we decline to do so in this instance because the August 5, 2022, contempt adjudication is not accompanied by any sanction and, thus, would amount solely to harmless error. See Adcock v. Fronk, 289 So. 3d 1244, 1254 (Ala. Civ. App. 2019); Cheek v. Dyess, 1 So. 3d 1025, 1031 (Ala. Civ. App. 2007) (concluding that any error in a contempt adjudication that did not impose a sanction and did not adversely affect the contemnor’s "person, property, or rights" would be harmless error); see also Rule 45, Ala. R. App. P. ("No judgment may be reversed or set aside …, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."). Accordingly, to the extent that the mother’s petition challenges the contempt adjudication in the August 5, 2022, pickup order, the petition is denied.
"‘"Mandamus is a drastic and extraordinary writ, to be issued only where there is (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 A.M.P., 997 So. 2d 1008, 1014 (Ala. 2008) (quoting Ex parte Perfection Siding, Inc., 882 So. 2d 307, 309-10 (Ala. 2003), quoting in turn Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995)).
[2] The main argument in the mother’s petition for the writ of mandamus is that the juvenile-court judge failed to comply with § 12-15-106(f), which governs a juvenile court’s rehearing of a referee’s findings, and that the juvenile-court judge improperly rejected the findings of the referee on the issue of the child’s home state. Although it appears that the juvenile-court judge failed to follow the correct procedure for a rehearing under § 12-15-106(f) by failing to review the record of the proceedings in front of the referee before conducting the July 21, 2022, hearing, we need not address that issue to dispense with the mother’s petition. After the UCCJEA hearings, the juvenile-court judge entered an order on September 29, 2022, concluding that, based on testimony and evidence adduced in Alabama, which we presume to be the testimony and evidence presented to the referee on June 10, 2022, Alabama is the child’s home state. The juvenile-court judge determined that the mother and the child had resided in Alabama between August 20, 2021, and April 16, 2022, which exceeds the requisite six-month period preceding the initiation of the presumed father’s paternity and custody action for Alabama to become the home state of the child under § 30-3B-102(7). According to the juvenile-court judge, a trip that the mother and the child took to Oregon in February 2022 using round-trip airline tickets was a "mere temporary absence[] from Alabama and did not disrupt Alabama’s status as the child’s home state." Although we permitted the mother to supplement her petition after the entry of the September 29, 2022, order, the mother has not provided this court with a transcript of the referee’s hearing or of any hearing conducted before the juvenile-court judge or with any additional documentary evidence that may have been submitted to either the referee or the juvenile-court judge other than those items that accompanied the original petition. Without those transcripts and/or evidence, the mother cannot establish that the juvenile-court judge’s conclusion that Alabama is the child’s home state based on his residence here between August 20, 2021, and April 16, 2022, was incorrect, and she has therefore not demonstrated a clear legal right to a writ of mandamus directing dismissal of the presumed father’s action.
We are not convinced, however, by the mother’s argument that the juvenile-court judge was precluded from supplanting the referee’s legal conclusion regarding subject-matter jurisdiction with her own. See Fry v. Fry, 451 So. 2d 344, 345-46 (Ala. Civ. App. 1984) (citing 5A J. Moore, Moore’s Federal Practice § 53.12[1] (2d ed. 1984), and explaining that, under Rule 53, Ala. R. Civ. P., which pertains to special masters, "the master’s report in this case is not governed by the ‘clearly erroneous’ rule of 53(e)(2) as the master made no express findings of fact" and that "the ‘clearly erroneous’ rule cannot be used to prevent the trial court’s searching review of the master’s recommendation or of ultimate findings which are in reality conclusions of law or at least mixed questions of law and fact"). We are similarly unconvinced by the mother’s argument that this court is required to assume that the referee made the findings necessary to support his conclusion regarding subject-matter jurisdiction or that those implicit findings are entitled to a presumption of correctness on mandamus review before this court. See E.F. v. H.P.K., 825 So. 2d 125, 128 (Ala. Civ. App. 2001) (explaining that when a juvenile-court judge rejects the findings of a referee, the referee’s findings are not entitled to a presumption of correctness on appeal).
In her supplement to the petition for the writ of mandamus, the mother contends, without dispute by the presumed father, that the juvenile-court judge took no sworn testimony and received no evidence but, instead, merely reviewed the evidence presented before the referee. We therefore presume that the testimony and evidence to which the juvenile-court judge refers are the testimony and evidence presented to the referee. Ex parte Davis, 930 So. 2d at 501.
[3–7] The mother has, however, established a clear legal right to a writ directing the juvenile court to vacate the pendente lite custody orders and to hold an evidentiary hearing on the issue of pendente lite custody. As the mother correctly states, "where a child is born out of wedlock, the mother, as long as she is not unfit, has a superior right to custody of the child." B.E.B. v. H.M., 822 So. 2d 429, 430 (Ala. Civ. App. 2001). The presumed father has initiated an action seeking to establish his paternity of the child, but, currently, the mother maintains the superior right to custody of the child. Generally, before a court may enter a pendente lite custody order, "‘[a] parent must have notice of the issues the court will decide in order to adduce evidence on those issues before the court, to give the court a basis from which a determination most beneficial to the child can be made. Otherwise, the child, rather than being helped, might even be harmed.’" Ex parte Franks, 7 So. 3d 391, 395 (Ala. Civ. App. 2008) (quoting Thorne v. Thorne, 344 So. 2d 165, 170 (Ala. Civ. App. 1977)). Put another way, "due process require[s] that, before [a] court [may] award[ ] [one parent] pendente lite custody, [that parent must] introduce evidence establishing that an award of pendente lite custody [is] in the best interest of the child." Ex parte Russell, 911 So. 2d at 725.
We decline to consider the mother’s argument relating to the need for an affidavit under Rule 65(b), Ala. R. Civ. P. As explained in footnote 6, supra, the presumed father did not request that he be afforded relief without providing notice to the mother or her attorney.
In cases in which a party presents evidence indicating that the health or welfare of a child is in danger, an ex parte order awarding custody may be entered before notice and an opportunity to be heard is granted to a parent. See Ex parte Williams, 474 So. 2d 707, 710 (Ala. 1985). Neither the presumed father’s July 27, 2022, emergency motion seeking to hold the mother in contempt and for pendente lite custody nor his August 1, 2022, motion for a pickup order contained allegations relating to the safety or welfare of the child.
The allegations in the petition and the materials appended to it establish that the juvenile-court judge did not hold an evidentiary hearing after the filing of the presumed father’s July 27, 2022, emergency motion seeking to hold the mother in contempt and for pendente lite custody and August 1, 2022, motion for a pickup order and before the entry of the July 28, 2022, August 2, 2022, and August 5, 2022, orders awarding the presumed father pendente lite custody. Therefore, the juvenile-court judge could not have taken evidence from the parties concerning the best interest of the child. The juvenile-court judge’s July 28, 2022, August 2, 2022, and August 5, 2022, orders awarding the presumed father pendente lite custody were entered without supporting evidence and violated the mother’s right to due process. Accordingly, the mother is entitled to a writ directing the juvenile-court judge to vacate those orders and to hold an evidentiary hearing on the presumed father’s motions seeking pendente lite custody.
PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.