from Jackson Circuit Court (DR-17-900081)
THOMPSON, PRESIDING JUDGE.
Leann Shinnick ("the wife") appeals from a judgment
entered by the Jackson Circuit Court ("the trial
court") divorcing her from Brian Joseph Shinnick
("the husband"). The judgment, which incorporated
the agreement the parties had reached after negotiations and
announced in open court, divided the marital property,
awarded the wife alimony in gross, and waived periodic
alimony for both parties, among other things.
appeal, the wife maintains that the trial court did not
possess subject-matter jurisdiction but that, if this court
determines that the trial court did possess subject-matter
jurisdiction, the trial court erred in preventing her from
presenting evidence regarding her mental state and the
circumstances that existed at the time the parties'
agreement was reached. The record indicates the following
evidence and information relevant to the issues on appeal.
The husband filed a divorce complaint in the trial court on
May 1, 2017.In the complaint, he alleged that he was a
resident of Massachusetts but that the wife was a resident of
Jackson County, Alabama, and had been for more than six
months immediately before the complaint was filed. The
husband also submitted a sworn "affidavit of
residence" with the complaint, in which he stated that
he had personal knowledge that the wife "has resided
within the State of Alabama for more than six (6) months
prior to the date the Complaint in this matter was
7, 2017, the husband filed an application for an entry of
default. The next day, the husband filed a motion for a
default judgment on the ground that the wife had failed to
answer or otherwise submit a pleading in response to the
divorce complaint. On June 14, 2017, the wife filed a motion
to dismiss the divorce action pursuant to Rule 12(b), Ala. R.
Civ. P. Specifically, the wife claimed that the trial court
did not have subject-matter jurisdiction over the action or
personal jurisdiction over her. In the motion, the wife
stated that she was a legal resident of Massachusetts, that
she and the husband resided together in Massachusetts, and
that they had insufficient contacts with Alabama to confer
jurisdiction on this state.
support of her motion to dismiss, the wife submitted an
affidavit stating that, as of June 19, 2017, she was
"currently living in Nashville, Tennessee," but
that she was a legal resident of Massachusetts. She
acknowledged that she had owned a house in Jefferson County
since 2006, and that she and the husband had jointly owned
the house since 2008, but she stated that neither of them had
lived there since they married in Georgia in 2009. At the
time the wife executed the affidavit, she said, renters
occupied the house.
wife explained that the husband and she had lived in
Massachusetts throughout the marriage "until our
difficulties in May 2016." She testified that she took a
vacation to California in June 2016, then, on June 29, 2016,
she drove from the parties' house in Massachusetts to her
parents' home in Vincent, located in Shelby County. In an
e-mail message dated June 25, 2016, the wife told the husband
that she had "decided to spend the summer in
Alabama." The e-mail message indicated that her intent
was to return to the marital residence in Massachusetts in
August. However, "[b]y the time August 
arrived," the wife said, the husband "was so angry
with me that he asked me not to return to our home and
continued to ask me to not return to our home" as late
as April 2017. During that time, the wife said, she traveled
to Europe and then spent time in Nashville; Atlanta, Georgia;
Knoxville, Tennessee; Florida; and Oxford, Mississippi, often
visiting with family and friends.
the wife explained, she continued to hold a Massachusetts
driver's license and to pay taxes in Massachusetts; she
was enrolled in graduate school in Massachusetts; she did not
have a lease or utilities in her name in Alabama; and she did
not pay taxes in Alabama. On the other hand, the record
includes an e-mail message dated December 13, 2016, that
included a Blue Cross and Blue Shield of Alabama statement
for the wife; the wife's resume, which indicated an
address in Pisgah, which is in Jackson County; a number of
bank statements addressed to both parties at the Pisgah
address; and a case-action summary connected to a traffic
citation the wife received in Etowah County on February 1,
2017, showing the same Pisgah address for the wife. The wife
explained that the citation, which was for driving without a
driver's license, was dismissed after she explained to
the judge presiding over that matter that she had a valid
Massachusetts driver's license and that she had not lived
in Alabama for three consecutive months.
August 8, 2017, the trial court held a hearing on the
wife's motion to dismiss for lack of subject-matter
jurisdiction and personal jurisdiction. The day before that
hearing, the wife filed a complaint for a divorce in
Massachusetts. The wife was not present at the August 8,
2017, hearing in Alabama, although she was represented by an
attorney at that hearing. The wife's attorney told the
trial court that the wife did not dispute having lived both
in and outside of Alabama since the parties' separation
in May or June 2016, but that she had never made a permanent
change of her residence. At the time of the hearing, the
attorney said, the wife was living in the marital residence
in Massachusetts. The wife challenged the trial court's
jurisdiction on the ground that the wife had not been an
Alabama resident for six months before the husband filed the
divorce complaint on May 1, 2017. She further argued that she
never intended to make Alabama her permanent residence. The
State Judicial Information System indicates that on August 9,
2017, the trial court entered an order denying the wife's
motion to dismiss and scheduled the trial for October 3,
September 22, 2017, the wife filed a "restated motion to
dismiss for lack of jurisdiction." On October 3, 2017,
the date the trial was scheduled to begin, the wife asked to
be heard on the issue of jurisdiction again. After hearing
the arguments of the parties, the trial court again denied
the wife's motion to dismiss. The trial court then gave
the parties an opportunity to resolve the issues between
them. Later that same day, the parties announced in open
court that they had reached an agreement, which was then read
into the record. The following colloquy was then held:
"THE COURT [To the wife's attorney]: So is your
client agreeing that this Court has jurisdiction over the
parties and the marital issues?
"MR. EUSTACE [The wife's attorney]: As much as she
can agree to such legally, Judge, yes.
"THE COURT: Is she agreeing that she has lived in
Jackson County, Alabama, prior to her recent move back to
"MR. EUSTACE: She agrees that she did live here for some
time prior to her move.
"THE COURT: Either she agrees that I have jurisdiction
to enter this order, or she doesn't; now that's just
the way it is.
"MR. EUSTACE: She does, Your Honor.
"THE COURT: Is that true?
"MRS. SHINNICK: Yes, ma'am."
trial court then confirmed that what had been read into the
record was what had been agreed to by both parties. On
November 9, 2017, the trial court entered a judgment
divorcing the parties and incorporating that agreement.
December 11, 2017, the wife filed a motion to vacate the
final judgment and to dismiss the case. In her
postjudgment motion, the wife again asserted that the trial
court did not have subject-matter jurisdiction over this
matter because, she said, she had not been an Alabama
resident in the six months preceding the filing of the
divorce complaint. She claimed that the husband had been
forum shopping when he filed the action in Alabama and
asserted that she could have received a significantly better
outcome had the action been determined in Massachusetts.
Additionally, the wife argued for the first time that she
suffered from a mental illness and that that illness is what
prohibited her from appearing at the August 9, 2017, hearing
on her motion to dismiss. She contended that, on October 3,
2017, the day of the trial, she "was placed in a
position of having to either settle the case under materially
less favorable law than that of her domicile state of
Massachusetts or to conduct a trial for which she was unable
to prepare due to her mental condition and the principle of
forum non conveniens."
January 10, 2018, the trial court held a hearing on the
wife's postjudgment motion. That hearing will be
discussed in more detail later in this opinion. On January
11, 2018, the trial court denied the wife's postjudgment
motion. The wife then filed a timely appeal to this court.
appeal, the wife once again argues that the trial court did
not have subject-matter jurisdiction to consider this matter.
The wife appears to argue that, because neither the husband
nor the wife had lived in Alabama for six months before the
husband's filing of the complaint on May 1, 2017, the
trial court failed to obtain subject-matter jurisdiction in
to § 30-2-4, Ala. Code 1975,
"[c]omplaints for divorce may be filed in the circuit
court of the county in which the defendant resides, or in the
circuit court of the county in which the parties resided when
the separation occurred, or if the defendant is a
nonresident, then in the circuit court of the county in which
the other party to the marriage resides."
parties do not dispute that the husband is not an Alabama
resident. However, whether the wife was an Alabama resident
living in Jackson County at the time the complaint was filed
was an issue of fact for the trial court to decide.
"'Where evidence is presented ore tenus, this court
will not disturb a lower court's judgment unless that
judgment is palpably wrong, without supporting evidence, or
manifestly unjust.' Seymour v. Seymour, 597
So.2d 1368, 1369 (Ala. Civ. App. 1992). The major factual
issue in this case involves the residency of the parties.
"'The determination of whether the parties resided
in [a certain county] is a factual question resolved by the
trial court after a hearing of the evidence by the court.
Such a finding is given a presumption of correctness and will
not be disturbed by this court unless we can say it was
plainly and palpably wrong.'
"Ex parte Greene, 527 So.2d 1320, 1321 (Ala.
Civ. App. 1988)." Skieff v. Cole-Skieff, 884
So.2d 880, 883 (Ala. Civ. App. 2003).
the wife challenged the husband's contention that she was
an Alabama resident at the time the complaint was filed, and
the evidence regarding this issue was disputed.
"'"Section 30-2-5, Ala. Code 1975, discusses
the residency requirements for a plaintiff in a divorce
action when the defendant is a nonresident of Alabama and
"'"'When the defendant is a nonresident,
the other party to the marriage must have been a bona fide
resident of this state for six months next before the filing
of the complaint, which must be alleged in the complaint and
"'"If the residency requirements are not met,
then a trial court does not have jurisdiction over the
marital res and any judgment entered is void. Seymour v.
Seymour, 597 So.2d 1368 (Ala. Civ. App. 1992);
Chavis v. Chavis, 394 So.2d 54 (Ala. Civ. App.
1981). For the purposes of § 30-2-5, residence is the
same thing as domicile. Seymour v. Seymour, supra.
'Domicile is defined as residence at a particular place
accompanied by an intention to stay there permanently, or
for an indefinite length of time.' Nora v.
Nora, 494 So.2d 16, 17 (Ala. 1986). A person's
domicile continues until a new one is acquired.
"'Fuller v. Fuller, 991 So.2d 285, 290
(Ala. Civ. App. 2008). "[T]he burden is on the party who
asserts a change of domicile to prove it."
Richardson v. Richardson, 258 Ala. 423, 425, 63
So.2d 364, 366 (1953).'
"Ex parte Ferguson, 15 So.3d 520, 521-22 (Ala.
Civ. App. 2008). Furthermore, we note that '[w]hen the
trial court hears oral testimony regarding residence under
§ 30-2-5, "the judgment of the court is presumed
correct and will not be set aside on appeal unless so
contrary to the great weight of the evidence as to be
palpably wrong."' Livermore v. Livermore,
822 So.2d 437, 441 (Ala. Civ. App. 2001) (quoting Chavis
v. Chavis, 394 So.2d 54, 55 (Ala. Civ. App. 1981)).
'However, there is no presumption of correctness in the
trial court's application of law to the facts.'
Robinson v. Robinson, 795 So.2d 729, 733 (Ala. Civ.
App. 2001) (citing Gaston v. Ames, 514 So.2d 877
Hamilton v. Hamilton, 12 So.3d 1236, 1237-38 (Ala.
Civ. App. 2009)(emphasis added); see also Alsaikhan v.
Alakel, 173 So.3d 925, 927-28 (Ala. Civ. App. 2015).
agree with the general proposition of law set forth in the
dissenting opinion that parties cannot agree to confer
subject-matter jurisdiction in a divorce action. ___ So.3d at
___ (Moore, J., dissenting). We disagree, however, that that
is what occurred in this case. The dissenting opinion
bolsters its contention that the evidence did not support the
determination that the wife intended to stay in Alabama,
relying on Weith v. Weith, [Ms. 2160693, April 13,
2018] ___ So.3d ___, ___ (Ala. Civ. App. 2018), stating:
"In Weith, this court concluded that, although
the wife in that case had lived in Alabama for the requisite
six-month period, she had made the decision to remain in
Alabama less than a month before she filed her complaint for
a divorce. ___ So.3d at ___. Therefore, this court concluded
that the trial court ...