Circuit Court, DR-16-47.01
PETITION FOR WRIT OF MANDAMUS
THOMPSON, PRESIDING JUDGE.
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
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."
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.
materials before us indicate that on October 15, 2017, the
father filed an "amended petition for modification and
contempt" ("the modification
petition"). 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.
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.
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
"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.
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.
"Ex parte Liberty Nat'l Life Ins. Co., 888
So.2d 478, 480 (Ala. 2003)." Ex parte Progressive
Specialty Ins. Co., 31 So.3d ...