Circuit Court, DR-17-900325
PETITION FOR WRIT OF MANDAMUS
Denise Swaney ("the wife"), a resident of Baldwin
County, has filed a petition for the writ of mandamus in
which she asks this court to issue a writ directing the
Madison Circuit Court to enter an order transferring a
divorce action filed in that county against her by Jonathan
David Sanders ("the husband") to the Baldwin
Circuit Court. The record shows that, after being served with
the divorce complaint, the wife objected to venue in Madison
County and asserted that venue was improper in that county
under the provisions of § 30-2-4, Ala. Code 1975.
Because the undisputed evidence shows that the parties
resided in Baldwin County when they separated and that the
wife continued to reside in Baldwin County at the time the
complaint for a divorce was filed, we grant the wife's
to the materials submitted to this court in support of the
wife's petition, the parties were married in October 2011
in Nevada. In October 2014, the parties moved to Baldwin
County. The parties remained in Baldwin County until March
2017 when, the wife asserts, the husband abandoned her and
moved to Madison County.
April 20, 2017, the husband filed in the Madison Circuit
Court a complaint for a divorce. In the complaint, the
husband stated that he had "been domiciled in the State
of Alabama, for more than six months before filing the
Complaint for Divorce" and that the parties
"resided together until March 20, 2017 when they
separated and have not lived together as husband and wife
since that date." The husband did not state why venue
was appropriate in Madison County.
31, 2017, the wife filed a motion to dismiss or, in the
alternative, to transfer the case to the Baldwin Circuit
Court. In support of her motion, the wife cited §
30-2-4, Ala. Code 1975. The wife attached her sworn affidavit
to her motion in which she stated that she and the husband
had lived together in Baldwin County until March 20, 2017,
when the husband abandoned her, and that she had remained in
Baldwin County. The husband's counsel filed an unverified
response to the wife's motion in which the husband did
not deny that the parties had resided in Baldwin County at
the time they separated or that the wife had remained in
Baldwin County. The husband instead asserted that the venue
provisions contained in § 30-2-4 are not mandatory.
11, 2017, the Madison Circuit Court denied the wife's
motion. From the information in the materials submitted to
this court, it does not appear that a hearing was held. The
wife filed a petition for the writ of mandamus with this
court, and the husband did not file a response to the
"'A petition for the writ of mandamus is the
appropriate means by which to challenge a trial court's
order regarding a change of venue. Ex parte Sawyer,
892 So.2d 898, 901 (Ala. 2004). The writ of mandamus is an
extraordinary remedy; it will not be issued unless the
petitioner shows "'"(1) a clear legal right in
the petitioner to the order sought; (2) an imperative duty
upon the respondent to perform, accompanied by a refusal to
do so; (3) the lack of another adequate remedy; and (4)
properly invoked jurisdiction of the court."'"
Ex parte Inverness Constr. Co., 775 So.2d 153, 156
(Ala. 2000) (quoting Ex parte Gates, 675 So.2d 371,
374 (Ala. 1996)); Ex parte Pfizer, Inc., 746 So.2d
960, 962 (Ala. 1999).'
"Ex parte Children's Hosp. of Alabama, 931
So.2d 1, 5-6 (Ala. 2005).
"'"The burden of proving improper venue is on
the party raising the issue and on review of an order
transferring or refusing to transfer, a writ of mandamus will
not be granted unless there is a clear showing of error on
the part of the trial judge." Ex parte Finance
America Corp., 507 So.2d 458, 460 (Ala. 1987).'
Ex parte Pike Fabrication, Inc., 859 So.2d 1089,
1091 (Ala. 2002); see also Ex parte Hibbett Sporting
Goods, Inc., [Ms. 2160069, Jan. 27, 2017] So. 3d, (Ala.
Civ. App. 2017)."
Ex parte Hudson, [Ms. 2160558, June 23, 2017] So.
3d, (Ala. Civ. App. 2017). See also Ex parte
Watkins, 555 So.2d 1098, 1099 (Ala. Civ. App.
1989)("The question of whether to transfer a case
because of venue addresses itself to the sound discretion of
the trial court, and any abuse of that discretion may be
controlled by the writ of mandamus.").
wife argues that venue is proper in the Baldwin Circuit Court
and that the Madison Circuit Court was required to transfer
the action to the Baldwin Circuit Court. In support, the wife
cites § 30-2-4, Ala. Code 1975, which provides:
"Complaints for divorce may be filed in the circuit
court of the county in which the defendant resides, or in the
circuit court of the county in which the parties resided when
the separation occurred, or if the defendant is a
nonresident, then in the circuit court of the county in which
the other party to the marriage resides."
husband filed a divorce complaint that contained no
allegations of where the wife lived or where the parties
resided when the separation occurred. The wife promptly and
appropriately filed a motion seeking to dismiss or,
alternatively, to transfer the action to the Baldwin Circuit
Court. The wife attached to her motion an affidavit in which
she swore that the parties resided in Baldwin County at the
time of the separation and that she had ...