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Shinnick v. Shinnick

Alabama Court of Civil Appeals

September 21, 2018

Kathryn Leann Shinnick
v.
Brian Joseph Shinnick

          Appeal from Jackson Circuit Court (DR-17-900081)

          THOMPSON, PRESIDING JUDGE.

         Kathryn 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.

         On 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.[1]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 filed."

         On June 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.

         In 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.

         The 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 [2016] 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.

         Additionally, 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.

         On 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, 2017.

         On 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 Massachusetts?
"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."

         The 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.

         On December 11, 2017, the wife filed a motion to vacate the final judgment and to dismiss the case.[2] 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."

         On 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.

         On 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 this case.

         Pursuant 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."

         The 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).

         Initially, 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 states:
"'"'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 proved.'
"'"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. Id."
"'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 (Ala. 1987))."

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).

         We 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 ...

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