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Maxwell v. Maxwell

Alabama Court of Civil Appeals

June 22, 2018

Michael James Maxwell
v.
Maria Adela Maxwell

          Appeal from Dale Circuit Court (DR-11-355.04) THOMPSON, Presiding Judge.

         Michael James Maxwell ("the father") appeals from a judgment of the Dale Circuit Court ("the trial court") that, among other things not relevant to this appeal, modified custody of his children.

         On January 11, 2012, the trial court entered a default judgment divorcing the father and Maria Adela Maxwell ("the mother"). In the divorce judgment, the father was awarded custody of the parties' minor children ("the children"). The mother was not awarded visitation rights at that time. However, on April 29, 2013, the divorce judgment was modified to allow the mother to exercise visitation in a manner that was compatible with the distance between the mother's and the father's residences.

         The father is in the United States Army. At the time the 2012 divorce judgment was entered, he and the children lived in Dale County; the mother resided in New Jersey. There is no evidence in the record to suggest that the mother has ever lived in Alabama. The parties agree that the father and the children moved from Alabama in "mid-May 2013" to the father's new military posting in Hawaii. On June 26, 2013, the mother filed in the trial court a motion to enforce visitation and for contempt. It appears that she sought to visit the children before they left the United States mainland. The father was served with the motion in Hawaii on July 17, 2013.

         On May 30, 2014, more than one year after the father and the children had moved from Alabama, the mother filed in the trial court a petition to modify custody. On June 15, 2015, the father, who, along with the children, still lived in Hawaii at that time, filed in the trial court a contempt action against the mother. The trial court consolidated the three pending actions, i.e., the mother's 2013 motion to enforce visitation and for contempt and her 2014 modification petition and the father's 2015 contempt petition, for the purposes of conducting a final hearing and a entering a final judgment.

         In 2016, the father and the children moved to North Carolina. By that time, the mother had resided in New Jersey for at least six years. The parties continued to live in those respective locations when the trial court entered its judgment modifying custody on June 27, 2017. In that judgment, the trial court, among other things, awarded the mother sole physical custody of the children.

         The father filed a timely appeal from the modification judgment. On April 6, 2018, the appeal was submitted for decision on briefs. In the appellate briefs, neither party addressed the issue of the trial court's subject-matter jurisdiction. Because the record reflected that the parties and the children had not resided in Alabama for at least one year at the time the mother's modification petition was filed, this court requested letter briefs from the parties on the issue of the trial court's subject-matter jurisdiction to modify custody. The parties complied with our request, and we now address the issue of jurisdiction.

         Jurisdictional issues are of such importance that this court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala. Civ. App. 1997). "'[T]his Court is duty bound to notice ex mero motu the absence of subject-matter jurisdiction.'" Baldwin Cty. v. Bay Minette, 854 So.2d 42, 45 (Ala. 2003) (quoting Stamps v. Jefferson Cty. Bd. of Educ., 642 So.2d 941, 945 n.2 (Ala. 1994)). "'The question of jurisdiction is always fundamental, and if there is an absence of jurisdiction, over either the person, or the subject matter, a court has no power to act, and jurisdiction over the subject matter cannot be created by waiver or consent.'" Poff v. General Motors Corp., 705 So.2d 442, 443 (Ala. Civ. App. 1997) (quoting B.F. Goodrich Co. v. Parker, 282 Ala. 151, 155, 209 So.2d 647, 650 (1968)). Therefore, this court must determine whether the trial court, which awarded the father custody of the children in the 2012 divorce judgment, had continuing jurisdiction to modify the custody award even though the mother, the father, and the children all resided in other states at the time the mother's modification petition was filed.

         The Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, governs determinations of subject-matter jurisdiction in cases involving child-custody proceedings. Ex parte Gallant, 221 So.3d 1120, 1122 (Ala. Civ. App. 2016). The UCCJEA provides:

"(a) Except as otherwise provided in Section 30-3B-204[, Ala. Code 1975, dealing with temporary emergency jurisdiction], a court of this state which has made a child custody determination consistent with Section 30-3B-201 or Section 30-3B-203[, Ala. Code 1975, ] has continuing, exclusive jurisdiction over the determination until:
"(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
"(2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.
"(b) A court of this state which has made a child custody determination and does not have continuing, exclusive jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial ...

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