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B.B. v. L.W.

Alabama Court of Civil Appeals

September 26, 2014

B.B.
v.
L.W

Released for Publication May 15, 2015.

Page 1043

Appeal from Tuscaloosa Circuit Court. (DR-12-652.01). Elizabeth C. Hammer, Trial Judge.

For Appellant: Austin Burdick, Burdick Law Firm, Bessemer.

For Appellee: Jason T. Fleishman, Tuscaloosa.

THOMAS, Judge. Thompson, P.J., concurs. Pittman, J., concurs in the result, without writing. Moore, J., dissents, with writing. Donaldson, J., recuses himself.

OPINION

Page 1044

THOMAS, Judge.

B.B. (" the mother" ) appeals from a judgment of the Tuscaloosa Circuit Court (" the trial court" ) awarding custody of Br.B. (" the child" ) to the child's maternal grandmother, L.W. (" the grandmother" ).

The record indicates that the child was born in Michigan on July 25, 2002. Soon after the child's birth, the grandmother, with the mother's consent, was granted legal guardianship of the child by the Washtenaw County, Michigan, Probate Court (" the Michigan court" ).[1] Shortly thereafter, the grandmother moved with the child to Tuscaloosa, Alabama. The child lived with the grandmother in Alabama until April 2007, at which time the child went to live with the mother in Michigan. The record indicates that the mother continued to allow the child to visit with the grandmother in Alabama. This action stems from one such visit. According to the record, the mother allowed the child and one the mother's other children (" the younger brother" ) to visit the grandmother in June 2011; the children were scheduled to return to Michigan in August 2011 before the school year began. However, although the grandmother allowed the younger brother to return to Michigan, the grandmother detained the child in Alabama. According to the grandmother, she detained the child in Alabama because, she said, she had observed bruises and broken skin on the child's legs and an infection in the child's ears.

On July 5, 2012, the mother filed an emergency petition in the trial court seeking a writ of assistance and delivery of the child to her. The mother also filed in the Tuscaloosa Probate Court (" the probate court" ) a withdrawal of parental guardianship in which she withdrew her consent to the legal guardianship of the grandmother over the child, and, additionally, she filed in the probate court a certificate of appointment of guardian in which she appointed L.B., the child's maternal grandfather (" the grandfather" ), as guardian of the child.[2] The record also contains a letter from the Michigan court to the grandmother dated July 5, 2006, informing the grandmother that the guardianship granted to her by that court was valid only as long as she was a resident of Michigan and instructing her to establish guardianship in her current state of residency. The record additionally contained a letter from the Michigan court to the mother dated August 29, 2006, informing the mother that the guardianship granted to the grandmother by that court had been terminated. The grandmother claimed that she was not aware of either letter until 2012, although the July 5, 2006, letter was mailed to her correct address.[3]

The grandmother filed an answer to the mother's emergency petition and a counterclaim in the trial court on August 3, 2012, in which she alleged that the mother had physically abused the child and that it was in the child's best interest for custody to be awarded to the grandmother. Subsequently, each party filed a memorandum addressing whether, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (" the UCCJEA" ), codified

Page 1045

at § 30-3B-101 et seq., Ala. Code 1975, jurisdiction was proper in Alabama; the mother argued that jurisdiction was proper in Michigan.

A hearing was held on April 4, 2013, solely on the issue of jurisdiction. The trial court entered an order on April 11, 2013, in which it stated that " Alabama does appear to the 'home state' of the minor child under the UCCJEA as the minor child resided in the State of Alabama for at least six consecutive months immediately before the commencement of the this child custody proceeding with a person acting as a parent." The trial court also indicated that it had contacted the Michigan court and that that court had indicated that it would exercise jurisdiction only if an Alabama court declined to do so. The mother filed a motion seeking visitation with child on May 30, 2013; the trial court granted supervised visitation by an order dated June 27, 2013.

A trial was held over three days on July 29, August 2, and September 24, 2013, at which the trial court heard evidence ore tenus. The trial court entered a final judgment on November 4, 2013. In its judgment, the trial court held that the mother had relinquished custody of the child, and it awarded the grandmother custody of the child. The judgment also awarded the mother supervised visitation and ordered her to pay child support. The mother filed a motion to alter, amend, or vacate the judgment on November 26, 2013, in which she continued to assert that the trial court lacked jurisdiction pursuant to the UCCJEA and that, because the grandmother's counterclaim amounted to allegations of dependency, the trial court lacked subject-matter jurisdiction over the counterclaim. The grandmother responded on January 7, 2014. After a hearing on January 16, 2014, the trial court entered an amended final judgment on February 4, 2014, in which it added a statement explaining that it had conferred with the Michigan court before determining that it had jurisdiction to hear this case. The mother appealed to this court on February 18, 2014.

In her brief on appeal, the mother argues that the trial court lacked jurisdiction over this case pursuant to the UCCJEA; that the trial court lacked jurisdiction over the grandmother's counterclaim that, she argues, asserted that the child was dependent; that the trial court's judgment was not supported by clear and convincing evidence; and that the trial court unnecessarily restricted the mother to supervised visitation.

We first address whether the trial court had jurisdiction over this matter pursuant to the UCCJEA.

" '" [S]ubject-matter jurisdiction may not be waived; a court's lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu." ' S.B.U. v. D.G.B., 913 So.2d 452, 455 (Ala.Civ.App. 2005) (quoting C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App. 2003)). Questions of law, such as whether a court has subject-matter jurisdiction, are reviewed de novo. BT Secs. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310 (Ala. 2004)."

K.R. v. Lauderdale Cnty. Dep't of Human Res., 133 So.3d 396, 403-04 (Ala.Civ.App. 2013).

" '[T]he [UCCJEA], codified at Ala. Code 1975, § 30-3B-101 et seq., controls decisions regarding whether a court of this state has jurisdiction to make a child-custody determination or to modify another state's child-custody determination. M.J.P. v. K.H., 923 So.2d 1114, 1116-17 (Ala.Civ.App. 2005). A " child-custody determination," as defined in the UCCJEA, includes

Page 1046

any judgment providing for the legal or physical custody of a child or providing visitation with a child. § 30-3B-102(3). A " child-custody proceeding" is defined in the UCCJEA to include not only divorce actions involving the custody of a child, but also " neglect, ... dependency, ... [and] termination of parental rights" actions in which the issue of child custody is addressed. § 30-3B-102(4).'
" R.W.[ v. G.W.], 2 So.3d [869,] 871 [(Ala.Civ.App. 2008)]."

J.D. v. Lauderdale Cnty. Dep't of Human Res., 121 So.3d 381, 384 (Ala.Civ.App. 2013).

Section 30-3B-201, Ala. Code 1975, sets forth when an Alabama court has jurisdiction to make an initial custody determination:

" (a) Except as otherwise provided in Section 30-3B-04, 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;
" (2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more ...

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