April 10, 2015
Karen Lincecum Blackburn
from Fayette Circuit Court. (DR-12-82).
Lincecum Blackburn, Appellant, Pro se.
Appellee: Thomas E. Harrison, Mobile.
Judge. Thompson, P.J., and Pittman, Moore, and Donaldson,
Lincecum Blackburn (" the wife" ) and David
Blackburn (" the husband" ) were married on
November 6, 2004, in Louisiana. The parties later moved to
Mobile; it is undisputed that the parties were residents of
Alabama when this action commenced. On January 11, 2013, the
husband filed a complaint seeking a divorce in the Mobile
Circuit Court (" the trial court" ), alleging as
grounds incompatibility of temperament and an irretrievable
breakdown of the marriage. On January 16, 2013, the wife
filed an answer to the complaint and a counterclaim seeking a
divorce in which she alleged incompatibility of temperament
and that the husband had committed acts of domestic violence.
parties subsequently filed several motions dealing with,
among other things, discovery and pendente lite support. On
July 11, 2013, the wife filed a " motion to enforce the
covenant marriage contract," in which she asserted that
the parties had been married subject to the Louisiana
Covenant Marriage Act (" the Act" ), codified at
La. Rev. Stat. Ann., § 9:272 et seq., and that the
provisions of the Act governed the divorce action between the
parties. After a hearing, the trial court entered an order on
September 6, 2013, denying the wife's motion to enforce
the parties' covenant-marriage contract.
began on Wednesday, April 16, 2014, at which the wife
appeared pro se and the trial court heard evidence ore tenus.
The trial was scheduled to continue on the next day; however,
the wife requested a continuance due to a flooding emergency
at the marital home; the trial court granted a continuance to
Monday, April 21, 2014. On that day, the trial court stated
on the record that wife was not present at the trial, that
she had requested a second continuance that morning, and that
her second request for a continuance had been denied;
the husband rested his case. The trial court entered a
judgment on April 22, 2014, divorcing the parties and
dividing the marital property. The wife filed a motion
to alter, amend, or vacate or, in the alternative, for a new
trial on May 22, 2014. After a hearing, the trial court
denied the wife's postjudgment motion on August 8, 2014.
The wife timely appealed to this court on September 19, 2014.
first issue the wife raises in her pro se brief on appeal is
whether the trial court erred by failing to enforce the Act.
The Act, enacted in 1997, provides, in part:
" A. A covenant marriage is a marriage entered into by
one male and one female who understand and agree that the
marriage between them is a lifelong relationship. ...
" B. A man and woman may contract a covenant marriage by
declaring their intent to do so on their application for a
marriage license, as provided in [La. Rev. Stat. Ann.,
9:224(C), and executing a declaration of intent to contract a
covenant marriage, as provided in [La. Rev. Stat. Ann.,]
9:273. The application for a marriage license andthe
declaration of intent shall be filed with the official who
issues the marriage license
" C. A covenant marriage terminates only for one of the
causes enumerated in [Louisiana] Civil Code Article
101. A covenant marriage may be terminated
by divorce only upon one of the exclusive grounds enumerated
in [La. Rev. Stat. Ann.,] 9:307.A covenant marriage agreement
may not be dissolved, rescinded, or otherwise terminated by
the mutual consent of the spouses."
La. Rev. Stat. Ann., § 9:272. Section 9:307.A, La. Rev.
Stat. Ann., provides the fault-based grounds for which a
spouse to a covenant marriage may seek a divorce "
subsequent to the parties obtaining counseling." It is
undisputed that the parties in the present case entered into
a covenant marriage when they married in Louisiana.
research reveals that neither the appellate courts of this
state, nor of any other state, have addressed the issue
whether a state that does not have laws specifically
providing for covenant marriages, such as Alabama, must apply
the covenant-marriage law of another state during divorce
proceedings initiated by parties who are now domiciled in the
non-covenant-marriage state. Faced with this issue of first
impression, we must consider the feasible options for its
resolution. See Peter Hay, The American " Covenant
Marriage" in the Conflict of Laws, 64 La. L.Rev. 43
(2003). One option is to determine that our courts do not
have subject-matter jurisdiction to grant a divorce to
parties who entered into a covenant marriage. However, unlike
in Rosengarten v. Downes, 71 Conn.App. 372, 802 A.2d
170 (2002)(concluding that because Connecticut did not
recognize same-sex civil unions, the Connecticut court did
not have jurisdiction pursuant to Connecticut divorce law to
dissolve a civil union performed in another state), the
matter presently before us undoubtedly concerns a marriage,
as recognized by this state, albeit with statutory
limitations regarding the dissolution of that marriage. See
Hay, supra, at 51 (" It is most unlikely that th[e]
reasoning [of Rosengarten] would extend to covenant
marriages. They are intended as marriages ... by the state of
their creation." ). We, therefore, conclude that a court
of this state is not precluded from exercising jurisdiction
of a divorce action between parties who initially entered
into a covenant marriage in a different state.
determined that the trial court had jurisdiction to grant the
parties a divorce, the next question is whether a court of
this state is required to apply the Act to parties who
participated in a covenant marriage in Louisiana but who
subsequently relocated their domicile to Alabama. Although
there is no caselaw on point, as a matter of law,
" [u]nder our system of law, judicial power to grant a
divorce --jurisdiction, strictly speaking--is founded on
domicil. Bell v. Bell, 181 U.S.175, 21 S.Ct. 551, 45
L.Ed. 804, [(1901)]; Andrews v. Andrews,
188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366, [(1903)]. The
framers of the Constitution were familiar with this
jurisdictional prerequisite, and since 1789 neither this
Court nor any other court in the English-speaking world has
questioned it. Domicil implies a nexus between person and
place of such permanence as to control the creation of legal
relations and responsibilities of the utmost significance.
The domicil of one spouse within a State gives power to that
State, we have held, to dissolve a marriage wheresoever
Williams v. North Carolina, 325 U.S. 226, 229-30, 65
S.Ct. 1092, 89 L.Ed. 1577 (1945). We also find in the
Restatement (Second) of Conflict of Laws § 285 (1971),
that " [t]he local law of the domiciliary state in which
the action is brought will be applied to determine the right
to divorce." We further note that our supreme court has
stated that " [t]he State is a silent party to divorce
actions, public policy is involved and the integrity of the
court's decrees are involved." Winston v.
Winston, 279 Ala. 534, 538, 188 So.2d 264, 267 (1966)
(citing Winston v. Winston, 276 Ala. 303, 161 So.2d
588 (1964); and Hartigan v. Hartigan, 272 Ala. 67,
128 So.2d 725 (1961)). Moreover, the drafter of the Act
concedes in an article that she coauthored that Louisiana
ceases to be an " interested state" if neither
party has retained domicile in Louisiana. See Katherine Shaw
Spaht & Symeon C. Symeonides, Covenant Marriage and the Law
of Conflicts of Laws, 32 Creighton L.Rev. 1085, 1109 n.127
only authority cited by the wife in her appellate brief for
this issue is caselaw standing for the proposition that
parties may agree that laws of a state other than Alabama
govern their prenuptial agreement. See Holston v.
Holston, 128 So.3d 736 (Ala.Civ.App. 2013). Even if we
were to construe the document the parties executed as a
prenuptial agreement, we also note that the " authority
of a court ... to grant [a] divorce is purely
statutory." See Cooley v. Cooley, 51 Ala.App.
273, 277, 284 So.2d 729, 731 (Civ. 1973); see also, Gary H.
Nichols, Covenant Marriage: Should Tennessee Join the Noble
Experiment?, 29 U. Mem. L.Rev. 397, 451 n.326 (1999)(" A
Tennessee court could find that the covenant marriage is not
an antenuptial agreement, and that under Tennessee law,
spouses may only divorce under the Tennessee statutes as
enacted. See, e.g., Chastain v. Chastain, 559 S.W.2d
933, 934 (Tenn. 1977) (holding that 'the substantive law
governing divorce in Tennessee is purely
statutory')." ). We further note that, pursuant to
La. Civ. Code, art. 3521, a Louisiana court " may grant
a divorce or separation only for grounds provided by the law
of [Louisiana]." We find no basis, statutory or
otherwise, for a court of this state to grant a divorce based
upon the laws of a state other than Alabama.
30-2-1(a)(7) and (9), Ala. Code 1975, empowers the circuit
courts of this state to divorce married persons for " a
complete incompatibility of temperament" or " an
irretrievable breakdown of the marriage." It is
undisputed that the parties were domiciled in Alabama when
the husband initiated this action and that the husband, and
the wife in her counterclaim, asserted incompatibility as a
ground for a divorce. Moreover, our legislature has
previously considered, and thus far rejected, the
implementation of covenant marriage in Alabama. Given that
availed themselves of the laws of this state in their initial
filings for a divorce, and that the laws of this state do not
provide for a covenant marriage, we conclude that the trial
court did not err when it denied the wife's motion to
enforce the parties' covenant-marriage contract.
construe the wife's next argument in her appellate brief
as asserting that the trial court erred by failing to rule
upon motions dealing with discovery and contempt that had
been filed while this action was pending. The wife asserts
that the trial court violated Rule 58, Ala. R. Civ. P., when
it entered the final divorce judgment. However, the trial
court stated in its judgment " that any request not
otherwise specifically addressed by this order shall be
deemed denied." Therefore, we conclude that the trial
court addressed all outstanding motions before it and that
the judgment was a final, appealable judgment.
remaining arguments in the wife's brief are not developed
and are not supported by relevant legal authority.
" 'When an appellant fails to properly argue an
issue, that issue is waived and will not be considered.
Boshell v. Keith, 418 So.2d 89 (Ala. 1982).'
Asam v. Devereaux, 686 So.2d 1222, 1224
(Ala.Civ.App. 1996). 'An appeals court will consider only
those issues properly delineated assuch, and no matter will
be considered on appeal unless presented and argued in brief.
Ex parte Riley, 464 So.2d 92 (Ala. 1985).'
Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.
Tucker v. Cullman--Jefferson Cntys. Gas Dist., 864
So.2d 317, 319 (Ala. 2003). See also White Sands Grp.,
L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008)
(" Rule 28(a)(10)[, Ala. R. App. P.,] requires that
arguments in briefs contain discussions of facts and relevant
legal authorities that support the party's position. If
they do not, the arguments are waived." ).
upon the foregoing, the judgment of the trial court divorcing
the parties is affirmed.
P.J., and Pittman, Moore, and Donaldson, JJ., concur.
The trial court memorialized the denial of
the wife's request for a continuance by an order
entered on April 22, 2014.
There were no children born of the
Louisiana Civ. Code Ann. art. 101,
provides, in its entirety:
" Marriage terminates upon:
" The death of either spouse.
" A judicial declaration of its nullity, when
the marriage is relatively null.
" The issuance of a court order authorizing the
spouse of a person presumed dead to remarry, as provided by
Senate Bill 270, introduced during the 2012
legislative session, proposed a covenant-marriage act similar
to the Act; consideration of that bill was postponed
indefinitely in the state senate, and the bill never became