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Ex parte Gentry

Alabama Court of Civil Appeals

May 5, 2017

Ex parte Michael Gentry
v.
Michael Gentry In re: Nancy Schillaci and Ben Schillaci

         Jefferson Circuit Court, CV-16-280

          PETITION FOR WRIT OF MANDAMUS

          THOMAS, Judge.

         This is the second time Michael Gentry ("the father") has sought review of an interlocutory order entered by the Jefferson Circuit Court ("the trial court") in the grandparent-visitation action filed by Nancy Schillaci ("the maternal grandmother") and Ben Schillaci ("the maternal stepgrandfather"). See Ex parte Gentry, [Ms. 2160155, January 27, 2017] ___So. 3d ___(Ala. Civ. App. 2017). The procedural history was set out in Ex parte Gentry, ___So. 3d at___:

"The father and his wife, Whitney Gentry, who died in February 2014, were the parents of three children. In August 2016, the maternal grandmother and the maternal stepgrandfather filed a complaint in the trial court seeking an award of visitation with the children pursuant to Ala. Code 1975, § 30-3-4.2, which became effective on August 1, 2016. See Act No. 2016-362, § 5, Ala. Acts 2016. That same day, [Eddie Raymond Gentry ('the paternal grandfather') and Robin Lynne Gentry ('the paternal stepgrandmother')] filed a similar complaint.[1] The trial court consolidated the actions and appointed a guardian ad litem for the children.
"In September 2016, the father moved to dismiss the actions. One of the arguments the father asserted in his motion, as amended, was that the maternal stepgrandfather and the paternal stepgrandmother should be dismissed as parties to their respective actions because, he contended, neither is a 'grandparent' as that term is defined in § 30-3-4.2(a)(1); therefore, the father argued, they lacked 'standing' to bring the actions under § 30-3-4.2(b). The trial court denied the father's motion by order entered on October 3, 2016."

         In his September 2016 motion to dismiss, the father also asserted that the Grandparent Visitation Act, codified at Ala. Code 1975, § 30-3-4.2 ("the GVA"), was both unconstitutional on its face and as applied. The certificate of service on the father's motion to dismiss listed counsel for the maternal grandmother and the maternal stepgrandfather, counsel for the paternal grandfather and the paternal stepgrandmother, and the guardian ad litem for the children. Nothing in the materials before this court on either of the father's mandamus petitions[2] indicate that the father had served the attorney general with his constitutional challenge to § 30-3-4.2 at that time.

         The maternal grandmother and the maternal stepgrandfather had filed a motion seeking temporary visitation with the children. On October 3, 2016, the trial court entered an order stating that the parties had reached an agreement regarding temporary visitation. The order stated that, until the parties submitted a jointly proposed order with other specified visitation arrangements, the maternal grandmother and the maternal stepgrandfather would have visitation with the children for three hours every other Sunday afternoon or six hours every two weeks.

         The father answered the maternal grandmother and the maternal stepgrandfather's complaint on October 25, 2016. He also asserted a counterclaim in which he sought a judgment declaring the GVA unconstitutional. The certificate of service of the father's answer and counterclaim indicates that he had sent a copy of the pleading to the attorney general via certified mail.

         The trial court held a hearing on November 16, 2016, at which it heard arguments of counsel and, with the consent of the parties, held an in camera interview outside the presence of the parties and their attorneys with I.G. ("the eldest child"). The trial court specifically stated that it would not place the eldest child under oath.

         The trial court held an evidentiary hearing on pendente lite visitation on December 2, 2016. The father, the maternal grandmother, and the maternal stepgrandfather testified. The trial court found in its December 23, 2016, order that the testimony established that the maternal grandmother had cared for the children, primarily in the father's home, at least two days a week during most weeks between August 2013 and January 2015. The court determined that the father had informed the maternal grandmother in late December 2014 or early January 2015 that he had made other arrangements for the care of the children. The trial court found that the maternal grandmother had seen the children only six times between January 2015 and the filing of the complaint in August 2016.

         Based on those findings, the trial court concluded that the maternal grandmother had proven that she had "established a significant and viable relationship with the children in two ways" because she had established that she had been "the caregiver to the children on a regular basis for at least six consecutive months within the three years preceding the filing" of her complaint, see §§ 30-3-4.2(d)(1)a. and 30-3-4.2(o)(2), and because she had "had frequent or regular contact with the children for at least 12 consecutive months ... within the three years preceding the filing of" her complaint. See §§ 30-3-4.2(d)(1)c. and 30-3-4.2(o)(4). The trial court then concluded that visitation with the maternal grandmother and the maternal stepgrandfather was in the best interest of the children, based on testimony and photographs indicating that the younger two children were happy during visits with the maternal grandmother and the maternal stepgrandfather. The trial court also noted that the children's guardian ad litem had stated his opinion that visitation would be in the best interest of the two younger children and that the guardian ad litem had stated that denial of that visitation "may[, ] has been, or will be likely harmful to that relationship and the children." The trial court awarded pendente lite visitation to the maternal grandmother and the maternal stepgrandfather for five hours on alternating Sundays each month and, subject to further recommendations of the guardian ad litem or an agreement of the parties, for "either ... a substantial period every day for one week during the summer" or, "in addition to the regular monthly visits, the maternal grandparents shall have at least six (6) additional visits during the summer of at least five (5) hours each on the first and second Thursdays of the months of June, July, and August."

         In the December 23, 2016, order, the trial court set the matter for a trial to be held on August 7, 2017. The trial court also stated:

"For purposes of this Order, the Court finds that the most recently Amended version of [the GVA], which became effective on August 1, 2016, to be constitutional. The father's Motion to Dismiss was based on the argument that the [GVA] as amended is not constitutional. The Court pretermits further analysis of this issue."

         The father filed this petition for the writ of mandamus on February 3, 2017. In his petition, the father argues that the trial court's pendente lite grandparent-visitation order should be set aside because, he contends, the trial court failed to accord "special weight to the fundamental right of a fit parent to decide which associations are in the best interest of his or her child, " as required by § 30-3-4.2(o). He also complains that the trial court "conflates two requirements of the statute into one, " that the trial court's finding that the maternal grandmother was "the caregiver" under § 30-3-4.2(o)(2) is not supported by the evidence presented, that the trial court erred by relying on "undisclosed nontestimonial information" from the guardian ad litem, and that the evidence does not support the conclusion that visitation is in the best interest of the children. In addition, the father contends that the trial court erred in awarding visitation to the maternal stepgrandfather, who, he says, is not entitled to visitation under the GVA because he is not a "grandparent" based on the definition set out in § 30-3-4.2(a)(1). Finally, the father argues that § 30-3-4.2(o) is unconstitutional, both on its face and as applied in the present case.

         We first consider the father's argument that the trial court erred in awarding pendente lite grandparent visitation to the maternal stepgrandfather because he does not fall within the definition of "grandparent" in § 30-3-4.2(a)(1).[3] Section 30-3-4.2(a)(1) defines "grandparent" as "[t]he parent of a parent, whether the relationship is created biologically or by adoption." The language is plain, and we must "interpret [it] to mean exactly what it says." IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992). A stepgrandfather is not the biological or adoptive parent of either of the children's parents. Thus, the maternal stepgrandfather is not within the class of persons who may seek grandparent visitation under the GVA. To the extent that the trial court awarded the maternal stepgrandfather pendente lite visitation, it erred.

         We next turn to the father's constitutional arguments. The attorney general has appeared as a respondent and argues that the trial court was, and this court is, without jurisdiction to consider the facial constitutionality of the GVA, or, more specifically, § 30-3-4.2(o), because the attorney general was not properly served with the father's constitutional challenge, as required by Ala. Code 1975, § 6-6-227, which states, in pertinent part, that, "if the statute ... is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard." See Tucker v. Personnel Bd. of City of Dothan, 644 So.2d 8, 9 (Ala. Civ. App. 1994) (quoting Smith v. Lancaster, 267 Ala. 366, 367, 102 So.2d 1, 2 (1958)) ("[O]ur Supreme Court has held 'that failure to serve the attorney general "goes to the jurisdiction of the court, " that the "absence of jurisdiction is apparent on the face of the record, " and that we must take notice of our own want of jurisdiction.'"); and Guy v. Southwest Alabama Council on Alcoholism, 475 So.2d 1190, 1191 (Ala. Civ. App. 1985) ("[W]hen a party challenges the constitutionality of a state statute and fails to serve the attorney general, the trial court has no jurisdiction to decide the constitutional claims and its decree is void."). As noted above, the father first questioned the facial constitutionality of the GVA in his September 2016 motion to dismiss. In October 2016, he filed a counterclaim requesting a judgment declaring the GVA to be unconstitutional. The certificate of service attached to the father's counterclaim contains the following language:

"I hereby certify that I have served a true and correct copy of the foregoing upon the parties or their counsel as listed below via Alacourt or via U.S. Mail, postage prepaid and properly addressed, if so indicated, on October 25, 2016.
"....
"BY CERTIFIED MAIL Luther Strange, Esq. Attorney General of Alabama P.O. Box 300152 Montgomery, AL 36130-0152"

         Relying on City of Gadsden v. Cartee, 279 Ala. 280, 281, 184 So.2d 360, 362 (1966), and Town of Warrior v. Blaylock, 271 Ala. 685, 686, 127 So.2d 618, 619 (1961), the attorney general contends that the mailing of a copy of the counterclaim to the attorney general's office is not sufficient to perfect service. In Cartee, the certificate of service of the last amendment to the city's petition indicated that the pleading had been addressed to the attorney general and placed in the mail with the proper postage. 279 Ala. at 281, 184 So.2d at 361. In Blaylock, "the bill pray[ed] that a copy thereof be sent by registered mail to the attorney general." 271 Ala. at 686, 127 So.2d at 619. In its opinion determining that the attorney general had not been properly served, our supreme court stated in Blaylock that

"[w]e are not to be understood as intimating that sending a copy of the bill of complaint to the attorney general by mail, registered or otherwise, would constitute sufficient service on him. The statute provides that 'the attorney-general of the state shall also be served with a copy ..., ' and does not provide that a copy be sent to him by mail."

271 Ala. at 686, 127 So.2d at 619. The Cartee court relied on Blaylock to conclude that sending the petition using regular mail was also insufficient to establish proper service on the attorney general. 279 Ala. at 281, 184 So.2d at 362.

         Of course, when Cartee and Blaylock were decided, service of process on resident defendants was required to be accomplished through personal service of the summons. Ala. Code 1940 (Recomp. 1958), Tit. 7, § 186; Equity Rules, Rule 5(a), Ala. Code 1940 (Recomp. 1958), Tit. 7, Appendix ("The summons must be served by the sheriff of the county ... upon each defendant personally ...."). In contrast, certified mail is now a permitted form of service on any defendant under Rule 4(i)(2), Ala. R. Civ. P. Thus, we cannot conclude that, under Cartee and Blaylock, certified mail is an insufficient method of service on the attorney general.

         However, the materials before us do not indicate that the father complied with the requirements of Rule 4(i)(2) to accomplish proper service by certified mail on the attorney general. "[S]trict compliance with the rules regarding service of process is required." Ex parte Pate, 673 So.2d 427, 429 (Ala. 1995); see also Ex parte Shuttlesworth, 410 So.2d 896 (Ala. 1981). Rule 4(i)(2) reads as follows:

"(2) Service by Certified Mail.
"(A) When Proper. When the plaintiff files a written request with the clerk for service by certified mail, service of process shall be made by that method. Alternatively, the attorney or party filing the process and complaint may initiate service by certified mail as provided in this rule.
"(B) How Served.
"(i) In the event of service by certified mail by the clerk, the clerk shall place a copy of the process and complaint or other document to be served in an envelope and shall address the envelope to the person to be served with instructions to forward. In the case of an entity within the scope of one of the subdivisions of Rule 4(c), the addressee shall be a person described in the appropriate subdivision. The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The case number of the case in which the pleading has been filed shall be included on the return receipt. The clerk shall forthwith enter the fact of mailing on the docket sheet of the action and make a similar entry when the return receipt is received.
"(ii) Alternatively, the attorney or party filing the process and complaint or other document to be served may obtain a copy of the filed pleading from the clerk or, if the pleading was filed electronically, use the copy returned electronically by the clerk. The attorney or party shall then place that copy of the process and complaint or other document to be served in an envelope and address the envelope to the person to be served with instructions to forward. In the case of an entity within the scope of one of the subdivisions of Rule 4(c), the addressee shall be a person described in the appropriate subdivision. The attorney or party shall affix adequate postage and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The return receipt shall be addressed to the clerk of the court issuing the process and shall identify the case number of the case in which the pleading has been filed. Upon mailing, the attorney or party shall immediately file with the court an 'Affidavit of Certified Mailing of Process and Complaint.' That affidavit shall verify that a filed copy of the process and complaint or other document to be served has been mailed by certified mail in accordance with this rule."

(Emphasis added.)

         Under Rule 4(i)(2), denoting in a certificate of service that a copy of a complaint (or, in this case, a counterclaim) has been sent by certified mail to a defendant does not accomplish service by certified mail. The materials before this court contain neither a notation on the docket sheet by the circuit clerk nor an "Affidavit of Certified Mailing of Process and Complaint" to indicate that service by certified mail was properly accomplished. Based on the materials before this court, and in light of the attorney general's statement that he did not receive proper service of the father's facial constitutional challenge to § 30-3-4.2(o), we must conclude that the father has not demonstrated that he properly served the attorney general by certified mail. Because the attorney general was not properly served, the trial court lacked, and this court lacks, jurisdiction to decide the father's facial constitutional challenge to the GVA or, more specifically, to § 30-3-4.2(o).

         We can, however, consider the father's argument that § 30-3-4.2(o) is unconstitutional as applied to him in the present case. "[A]n 'as-applied challenge' is 'a claim that a statute is unconstitutional on the facts of a particular case or in its application to a particular party.'" State v. Adams, 91 So.3d 724, 754 (Ala.Crim.App.2010) (quoting Black's Law Dictionary 244 (8th ed. 2004)). A party need not serve the attorney general to assert an "as applied" challenge to a statute. Ex parte Squires, 960 So.2d 661, 664-65 (Ala. 2006).

         As we begin our analysis of the father's "as applied" challenge to § 30-3-4.2(o), we recognize that

"we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956) .... Moreover, just as statutes dealing with the same subject are in pari materia and should be construed together, League of Women Voters[ v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974)], parts of the same statute are in pari materia and each part is entitled to equal weight."

Darks Dairy, Inc. v. Alabama Dairy Comm'n, 367 So.2d 1378, 1380-81 (Ala. 1979). Because of the length of the statute, we will not set out the entire text of the GVA; instead, we will quote those ...


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