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Ex parte Vest

Supreme Court of Alabama

February 27, 2015

Ex parte Jennifer Ann Vest (Herron); In re: Jennifer Ann Vest (Herron)
v.
David Jeremy Vest

Page 1050

          Elmore Circuit Court, DR-01-492.02; Court of Civil Appeals, 2120913.

         For Petitioner: Ronald A. (Chip) Herrington, Mobile.

         For Respondent: Keith A. Howard, Wetumpka.

          OPINION

Page 1051

         PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

         BOLIN, Justice.

         Jennifer Ann Vest (Herron) (" the mother" ) petitioned this Court for certiorari review of the decision of the Alabama Court of Civil Appeals affirming the Elmore Circuit Court's order imposing a five-day jail sentence for contempt. The contempt order arose out of a child-custody-modification action, which we now hold was improperly filed in the Elmore Circuit Court.

         Facts and Procedural History

         The mother and David Jeremy Vest (" the father" ) were divorced in 2002 in Elmore County. The mother was granted custody of the parties' minor child, and the father was granted visitation. With the court's permission, the mother moved to Mississippi. In 2006, the Elmore Circuit Court entered an agreement between the parties, modifying the father's visitation in light of the mother's move. The father moved to Mobile in 2006.

         On June 10, 2010, the mother filed in the Mobile Circuit Court a motion seeking to suspend the father's visitation and requesting supervised visitation and psychological counseling for the father and that the father pay for the child's psychological counseling based on the mother's allegations against the father. The father was living in Mobile at the time. On June 24, 2010, the father filed a response in the Mobile Circuit Court to the mother's motion. The father did not object to the venue of the Mobile Circuit Court in his response.

         On June 25, 2010, the father filed in the Elmore Circuit Court a motion to modify custody and a motion seeking to hold the mother in contempt for not following the modified visitation schedule entered by the Elmore Circuit Court. Attached to the father's motion was a child-support-information sheet on which the father's address was listed as being in Mobile. On July 23, 2010, the mother filed a motion in the Elmore Circuit Court to dismiss the father's postdivorce proceeding on the ground that venue was not proper in the Elmore Circuit Court because, she said, (1) she had commenced a postdivorce proceeding in the Mobile Circuit Court that remained pending and the father had neither objected to venue in that proceeding nor moved the Mobile Circuit Court to transfer that proceeding to the Elmore Circuit Court, and (2) neither party was then living in Elmore County and the father had lived in Mobile County for " over two years."

         On August 6, 2010, the mother amended her motion to dismiss to further argue that the father had waived his right to object to venue in the Mobile Circuit Court by admitting that he lived in Mobile County. The mother again asked the Elmore Circuit Court to dismiss the father's motion to modify custody and to hold him in contempt. In the alternative, the mother sought to have the father's motion transferred to the Mobile Circuit Court.

         The Elmore Circuit Court held a hearing on the mother's motion to dismiss during which the mother stated that she had introduced in the Elmore Circuit Court the motion filed in the Mobile Circuit Court without objection from the father. The Elmore Circuit Court, on September 29, 2010, entered an order denying the mother's motion to dismiss. On November 8, 2010, the mother petitioned the Court of Civil Appeals for a writ of mandamus, which it denied, holding that the mother had failed to establish a clear legal right to mandamus relief. Ex parte Vest, 68 So.3d 881 (Ala.Civ. 2011)(" Vest I" ).

         After the Court of Civil Appeals denied the mother's petition for a writ of mandamus,

Page 1052

the mother, on March 10, 2011, filed a renewed motion to dismiss the father's postdivorce proceeding in the Elmore Circuit Court and, on April 8, 2011, filed a second renewed motion to dismiss the father's postdivorce proceeding in the Elmore Circuit Court. The renewed motion to dismiss and the second renewed motion to dismiss asserted that the father's postdivorce proceeding in the Elmore Circuit Court was actually a compulsory counterclaim in the postdivorce proceeding the mother had filed in the Mobile Circuit Court and, therefore, that the father's postdivorce proceeding in the Elmore Circuit Court was barred by § 6-5-440, Ala. Code 1975. Those motions also asserted that the father's postdivorce proceeding in the Elmore Circuit Court should be dismissed because, the mother said, the father had waived his objection to venue in the Mobile Circuit Court by failing to assert an objection to venue in his response to the mother's motion initiating her postdivorce proceeding in the Mobile Circuit Court. The mother attached to her motions certified copies of the motion she had filed to initiate her postdivorce proceeding in the Mobile Circuit Court, along with the father's response to her motion. On April 13, 2011, the Elmore Circuit Court entered an order denying the motions to dismiss.

         On April 14, 2011, the mother again petitioned the Court of Civil Appeals for a writ of mandamus, which that court denied, holding as follows:

" Because the mother and the parties' child had not resided in a county in Alabama for a period of at least three consecutive years immediately preceding the filing of her postdivorce proceeding in the Mobile Circuit Court, § 30-3-5[, Ala. Code 1975,] dictated that the proper venue for the mother's postdivorce proceeding was the Elmore Circuit Court, which was 'the original circuit court rendering the final [divorce] decree.' The fact that the father, who was not the custodial parent, was residing in Mobile County when the mother filed her postdivorce proceeding was irrelevant to the determination of the proper venue of the mother's postdivorce proceeding under § 30-3-5. The father subsequently filed his postdivorce proceeding in the Elmore Circuit Court, which was the proper venue for that proceeding under § 30-3-5.
" Thus, in arguing that § 6-5-440 bars the father's postdivorce proceeding because she had previously filed a postdivorce proceeding in the Mobile Circuit Court, the mother is asking this court to hold that one former spouse may race to the courthouse and file a postdivorce proceeding in an improper venue and thereby bar the other former spouse from filing a postdivorce proceeding in the proper venue. The mother has cited no binding precedent that dictates that result. Moreover, if we were to hold that § 6-5-440 dictates such a result, we would be encouraging former spouses to race to the courthouse and forum shop. Consequently, we hold that, under the particular circumstances of this case, § 6-5-440 does not bar the father's postdivorce proceeding in the Elmore Circuit Court."

Ex parte Vest, 130 So.3d 566, 571 (Ala.Civ. 2011) (" Vest II" ). The Court of Civil Appeals overruled the mother's application for a rehearing on October 28, 2011.

         The mother petitioned this Court for certiorari review, and this Court granted the petition. We rejected the Court of Civil Appeals' " race to the courthouse" rationale and stated:

" It does not follow from the principle that venue in child-custody-modification proceedings can be waived that a forum-shopping ...

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