Appeal from Jackson Circuit Court. (DR-92-6701). W. Loy Campbell, TRIAL JUDGE.
Rehearing Overruled November 18, 1994, . Certiorari Denied March 3, 1995. Released for Publication July 5, 1995.
Robertson, Thigpen and Yates, JJ., concur.
The opinion of the court was delivered by: Robertson
ROBERTSON, Presiding Judge
This is a child custody modification case.
Johnny Pittman and Betty Dean Pittman were divorced by the Jackson County Circuit Court on May 7, 1992. Pursuant to an agreement between the mother and the father, the mother was granted custody of their minor daughter and was awarded child support.
On March 23, 1993, the father filed a petition to modify, seeking custody of the minor child and seeking child support. On June 14, 1993, the father filed an application, with a supporting affidavit, to the court clerk for the entry of a default against the mother for her failure to plead, answer, or otherwise defend. That same day the court clerk entered a default against the mother. On August 2, 1993, the father filed a motion for a final judgment awarding him custody of the minor child. On August 3, 1993, the trial court entered a judgment immediately transferring custody of the minor child to the father. The trial court awarded the mother reasonable visitation with the minor child and ordered the mother and the father to file income affidavits with the court to enable the court to determine the mother's child support obligation.
On August 9, 1993, the mother filed a motion to set aside the judgment. Following a hearing on the mother's motion, the trial court entered an order on August 13, 1993, setting aside the August 3, 1993, judgment. The trial court awarded the father temporary custody of the minor child and awarded the mother visitation with the child on alternating weekends. The trial court set the case for a final hearing on October 13, 1993.
On October 12, 1993, the mother filed a motion to transfer jurisdiction of the cause to Marion County, Tennessee, alleging that both she and the father lived in Tennessee and that Jackson County, Alabama, was an inconvenient forum for the purposes of making a custody determination. The mother's motion was denied on October 13, 1993.
Following an ore tenus proceeding on October 13, 1993, the trial court entered a judgment on October 18, 1993, awarding the father custody of the minor child and awarding the mother certain visitation rights. On November 15, 1993, the mother filed a motion to vacate the October 18, 1993, judgment, because, she alleged, among other things, a petition to modify the judgment of divorce was pending in the Circuit Court of Marion County, Tennessee, at the time the father filed his petition to modify. She also alleged that pursuant to § 30-3-23, Ala. Code 1975, the trial court lacked jurisdiction over the issue of custody. That same day, the mother also filed a motion for a new trial. Following a hearing on the mother's motions, the trial court entered an order on February 1, 1994, denying them.
The mother appeals, raising one issue: whether the trial court had jurisdiction pursuant to the Parental Kidnapping Prevention Act (P.K.P.A.), 28 U.S.C. § 1738A, and Alabama's Uniform Child Custody Jurisdiction Act (U.C.C.J.A.), §§ 30-3-20 through -44, Ala. Code 1975.
In its February 1, 1994, order, the trial court stated:
"The jurisdictional [argument] is that under the Alabama Uniform Custody Act, § 30-3-20 et seq., Ala. Code 1975, and the Federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, Alabama did not have jurisdiction to try this case because all of the parties, including the child, resided in Tennessee at the time the action was filed. [Betty Dean Pittman] contends this is jurisdictional and cannot be waived and that the order is absolutely void. ... [Betty Dean Pittman's] counsel ... filed a motion to transfer the case to Tennessee on the grounds of convenience of the parties. There was no question about this since Marion County, Tennessee, which would have been the appropriate Tennessee jurisdiction, is only 30 minutes from Scottsboro [in Jackson County, Alabama].
"No proof was offered on the motion, and in fact, it was stated, without objection, that the parties were present in a court in Marion County, Tennessee, to enforce a support order that had been entered by this court, and the Tennessee Judge announced that he was not dealing with any issue other than enforcement of support and that the custody matter would be tried in ...