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Nelson v. Maddox

Alabama Court of Civil Appeals

August 17, 2018

Michaelle Nelson
v.
Cortney Antwan Maddox

          Appeal from Lee Circuit Court (DR-12-900056.02)

          THOMPSON, PRESIDING JUDGE.

         Michaelle Nelson ("the mother") and Cortney Antwan Maddox ("the father") were divorced by a judgment of the Lee Circuit Court. In December 2013, the trial court entered a modification judgment in which it, among other things, awarded the parties joint physical and legal custody of their minor child and ordered that the father pay $200 per month in child support.[1]

         On April 19, 2017, the mother filed a petition seeking to modify the father's child-support obligation. The mother signed her petition as a pro se litigant, but that petition includes the name of an attorney representing the Lee County Department of Human Resources ("DHR"). The record indicates that the mother had asked DHR for assistance in obtaining an increase in child support and that DHR had advised the mother to seek the modification of the father's child-support obligation. The action was initially heard by a referee who, in a December 18, 2017, order, stated that the matter should be heard by the trial court.

         The trial court conducted an ore tenus hearing at which both parties appeared pro se. The attorney for DHR appeared at the hearing, apparently for the limited purpose of determining the father's child-support obligation, although DHR was not a party to the action. On February 1, 2018, the trial court entered a judgment in which it, among other things, modified custody to award custody of the child to the father and ordered the mother to pay child support.[2] The mother, then represented by an attorney, filed a timely notice of appeal on March 13, 2018.

         The record reveals the following pertinent procedural history and facts. The attorney for DHR explained to the trial court that the referee had "bumped" the action to the trial court without making a determination because, the attorney explained, when the parties were before the referee, the father argued that the mother had moved with the child to Georgia in violation of an order of the trial court and that his visitation had been curtailed as a result. For that reason, the attorney for DHR stated, the referee had concluded that, because there were other issues besides child support that needed to be resolved between the father and the mother, the action should be resolved by the trial court. The parties presented evidence regarding the issues of child custody and child support. The child was eight years old at the time of the hearing in this matter.

         The record demonstrates that, shortly after the entry of the December 2013 judgment, the mother announced an intention to relocate with the child to the Atlanta, Georgia, area. The father filed in the trial court an objection to that move. The trial court entered an order declining to grant permission for the mother to relocate to Georgia with the child; that order is not contained in the record on appeal, but it is clear that, in resolving this action, the trial court referred to that order. Regardless, the mother relocated with the child to Georgia. In response to questioning by the trial court, the father testified that he could not afford to pay court fees and attorney fees to continue to fight the mother's refusal to return the child to Alabama. The father presented evidence, however, indicating that he traveled to Georgia several times each month to retrieve the child for visitation. The father's testimony was that he returns to Alabama with the child to visit at his home and so that the child can see extended family who live near the father's home. The father also presented evidence concerning the mother's care of the child, his care of the child, their respective homes, and his desire for an award of custody.

         The mother, and the attorney for DHR, sought to modify the father's child-support obligation based on the amount of time the child lived with the mother due to the mother's unauthorized relocation to Georgia. The mother did not seek a modification of the joint-custody award set forth in the December 2013 judgment.

         Initially, we note that, buried in her argument on another issue, the mother briefly questions the trial court's jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, to modify custody of the child. The mother points out that, because the child has lived primarily in Georgia with her for the last four years, Georgia is the child's home state. See § 30-3B-102(7), Ala. Code 1975 (A child's "home state" is "[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding."). The mother relies solely on her argument that Georgia is the child's home state, and she makes no argument applying the provisions of the UCCJEA.

         In its February 1, 2018, judgment, the trial court specifically determined that it retained jurisdiction over the action. With regard to maintaining jurisdiction over a custody matter, the UCCJEA provides:

"(a) Except as otherwise provided in Section 30-3B-204, [Ala. Code 1975, ] 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."

§ 30-3B-202, Ala. Code 1975. The Official Comment to § 30-3B-202 explains, in pertinent part, the requirement that a child and one parent have a "significant connection" with Alabama in order for Alabama courts to retain continuing jurisdiction over the issue of custody of the child:

"1. If a parent or a person acting as a parent remains in the original decree state, continuing jurisdiction is lost when neither the child, the child and a parent, nor the child and a person acting as a parent continue to have a significant connection with the original decree state and there is no longer substantial evidence concerning the child's care, protection, training and personal relations in that state. In other words, even if the child has acquired a new home state, the original decree state retains exclusive, continuing jurisdiction, so long as the general requisites of the 'substantial connection' jurisdiction provisions of Section 201 are met. If the relationship between the child and the person remaining in the state with exclusive, continuing jurisdiction becomes so attenuated that the court could no longer find significant connections and substantial evidence, jurisdiction would no longer exist."

(Emphasis added.)

         A portion of the Alabama Parent-Child Relationship Protection Act ("the Act"), §§ 30-3-160 through -169.10, Ala. Code 1975, provides that a child maintains a significant connection with this state when the parents have previously been awarded joint legal and/or joint physical ...


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