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Ex parte K.J.

Alabama Court of Civil Appeals

June 22, 2018

Ex parte K.J.
v.
K.J. In re: S.B.

          Jefferson Circuit Court, Bessemer Division, CV-17-330

          PETITION FOR WRIT OF MANDAMUS

          DONALDSON, Judge

         K.J. ("the father") petitions this court for a writ of mandamus directing the Jefferson Circuit Court, Bessemer Division ("the circuit court"), to grant his motion to dismiss the petition of S.B. ("the grandmother"), who sought an order from the circuit court permitting her to have visitation with the father's child, K.H.J. ("the child"). For the reasons explained below, we deny the petition.

         Facts and Procedural History

         The materials submitted by the father indicate the following facts and procedural history relevant to the disposition of this petition for a writ of mandamus. The grandmother is a parent of the child's mother, A.J. ("the mother"). Pursuant to a court order from Greene County, the mother had sole custody of the child and the father had visitation rights. On March 17, 2014, the mother died. On March 25, 2014, the grandmother filed a petition in the Jefferson Juvenile Court, Bessemer Division ("the juvenile court"), asserting that the child was dependent. On May 1, 2015, the juvenile court entered a judgment granting sole custody of the child to the father and visitation to the grandmother.

         The grandmother appealed the juvenile court's judgment to this court, and the father cross-appealed. In S.J. v. K.J., 206 So.3d 641 (Ala. Civ. App. 2016), this court held that the juvenile court's record was inadequate for appellate review and transferred the grandmother's appeal to the circuit court for a trial de novo.[1] See Rule 28(D), Ala. R. Juv. P. We also held that the father's cross-appeal seeking appellate review of the judgment insofar as it granted the grandmother visitation was moot because the transfer of the grandmother's appeal to the circuit court for a trial de novo annulled and vacated the juvenile court's judgment.

         On January 3, 2017, the father filed a motion to dismiss the proceedings in the circuit court, asserting that the child was not dependent. On February 3, 2017, the grandmother filed an amended dependency petition, alleging that the father was unable to properly parent the child. On August 25, 2017, the circuit court conducted a pretrial conference in which the grandmother orally moved to dismiss the action. On August 28, 2017, the circuit court entered an order dismissing the action without prejudice.

         On September 7, 2017, the grandmother filed a petition in the circuit court seeking visitation with the child, pursuant to § 30-3-4.2, Ala. Code 1975 ("the Grandparent Visitation Act"). On November 27, 2017, the father filed a motion to dismiss the petition for lack of jurisdiction. On November 28, 2017, the circuit court entered an order denying the father's motion to dismiss.

         On April 3, 2018, the father filed a second motion to dismiss. In that motion, he argued that the circuit court lacked jurisdiction over the proceedings under the Grandparent Visitation Act. On April 26, 2018, the circuit court entered an order denying the father's second motion to dismiss.

         On May 2, 2018, the father filed the present petition for a writ of mandamus seeking an order compelling the circuit court to grant his motion to dismiss. We have jurisdiction to review the father's petition pursuant to § 12-3-10, Ala. Code 1975, and § 12-3-11, Ala. Code 1975.

         Standard of Review

         The father contends that the circuit court lacks subject-matter jurisdiction over the action, and "[t]he denial of a motion to dismiss for lack of jurisdiction is reviewable upon a timely filed petition for a writ of mandamus." Ex parte Diefenbach, 64 So.3d 1091, 1093 (Ala. Civ. App. 2010).

"'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 Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala. 2003) (quoting Ex parte Integon Corp., 672 So.2d 497, ...


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