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Ex parte Breslow

Alabama Court of Civil Appeals

February 2, 2018

Ex parte Amy Dolena Breslow
Jonathan Lee Breslow In re: Amy Dolena Breslow

         Limestone Circuit Court, DR-16-47.01



         Amy Dolena Breslow ("the mother") petitions this court for a writ of mandamus directing the Limestone Circuit Court ("the trial court") to enter an order dismissing the modification and contempt petition that Jonathan Lee Breslow ("the father") filed in the trial court. For the reasons set forth below, we deny the mother's petition.

         The materials submitted to this court in support of and in opposition to the mother's petition indicate the following. On May 11, 2016, the trial court entered a judgment divorcing the mother and the father. In the judgment, the trial court incorporated the parties' agreement, executed May 6, 2016, that provided, among other things not relevant to this matter, that they "shall share Joint Legal Custody" of the parties' children, with the mother having sole physical custody. The agreement further provided that the father

"shall receive visitation with the minor children on eighty (80) days throughout each and every year, with time to be prearranged by agreement of the parties and with the [mother] having the final say on the time, place and duration of said visitations. The parties agree to encourage each other to coordinate visitation and activities in advance and be respectful of the time schedules of either party in coordination of the visitation due to a standard schedule not being followed by the parties."

         It was also agreed that the mother could relocate at her discretion. Because the children were not yet of an age to travel, the father agreed to be responsible for arranging transportation to visit with the children and to pay for his travel expenses, as well as the costs and expenses he and the children incurred during his visitation periods.

         The materials before us indicate that on October 15, 2017, the father filed an "amended petition for modification and contempt" ("the modification petition").[1] In the modification petition, the father stated that, after the divorce judgment was entered, the mother relocated to California. He alleged that, when the mother moved, she told him "'she would do everything in her power to keep the Father's children from him.'" The father said that the mother has denied him visitation with the children since December 10, 2016. Consequently, the father said, he was requesting that the trial court modify the existing visitation provision in the divorce judgment and, instead, implement the standard "out-of-state visitation schedule." The father also sought a change in the cost arrangement regarding visitation and to have the mother held in contempt for her "severe breach" of the existing visitation order.

         The mother filed a motion to dismiss the modification petition "for lack of subject matter jurisdiction." Specifically, the mother argued in her motion that the children and she--the custodial parent--reside in California and have not lived in Alabama "in well over twelve (12) months." As a result, the mother argued, the trial court "is without subject matter jurisdiction to consider the [father's] petition to modify" the visitation provision of the divorce judgment. The trial court denied the mother's motion to dismiss on October 27, 2017. The mother filed her petition for a writ of mandamus with our supreme court on December 8, 2017. Because this court has original appellate jurisdiction over the matter pursuant to § 12-3-10, Ala. Code 1975, our supreme court transferred the matter to this court on December 12, 2017.

         In her petition seeking a writ of mandamus, the mother argues that under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, the trial court has lost continuing, exclusive jurisdiction to determine custody or visitation in this matter.

"The UCCJEA is a jurisdictional act that establishes subject-matter jurisdiction over child-custody proceedings. See Ex parte M.M.T., 148 So.3d 728, 731 (Ala. Civ. App. 2014)(quoting § 30-3B-201, Ala. Code 1975, Official Comment). 'An Alabama ... juvenile court may not make any custody determination--neither an initial custody determination nor a determination as to modification of custody--regarding a child unless that court has jurisdiction to make an initial custody determination under the UCCJEA....' J.D. v. Lauderdale Cnty. Dep't of Human Res., 121 So.3d 381, 384-85 (Ala. Civ. App. 2013)."

H.T. v. Cleburne Cty. Dep't of Human Res., 163 So.3d 1054, 1062 (Ala. Civ. App. 2014).

"'"Mandamus is a drastic and extraordinary writ, to be issued only where there is (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 Integon Corp., 672 So.2d 497, 499 (Ala. 1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.
Ex parte Flint Constr. Co., 775 So.2d 805 (Ala. 2000).'

"Ex parte Liberty Nat'l Life Ins. Co., 888 So.2d 478, 480 (Ala. 2003)." Ex parte Progressive Specialty Ins. Co., 31 So.3d ...

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