Circuit Court Nos. DR-18-900013, DR-18-900013
PETITION FOR WRIT OF MANDAMUS
THOMPSON, Presiding Judge.
January 27, 2018, David Cole Robbins ("Robbins")
filed in the Blount Circuit Court ("the trial
court") a complaint seeking a divorce from Jessie
Burnett Robbins ("the mother"). In that complaint,
Robbins alleged that he and the mother had married on October
11, 2015, and that one minor child ("the child")
had been born "of the marriage" in 2010. Robbins
alleged that the parties had separated on January 1, 2018,
that he resided in Oneonta, and that the mother
"currently resides" in Ashville. We take judicial
notice that Oneonta is in Blount County and that Ashville is
in St. Clair County. Robbins's divorce complaint
contained no allegations concerning where the parties had
resided during their marriage or where they had resided at
the time of their separation.
related action filed in the Blount Juvenile Court ("the
juvenile court") on January 10, 2018, the child's
maternal grandparents alleged that the child was dependent,
that the mother had consented to the dependency action and to
an award of custody to them, and that the child's father
was unknown. In their dependency action, the maternal
grandparents alleged that the mother resided at the Oneonta
address that Robbins cited as his own address in his
complaint in the divorce action. On January 25, 2018, the
juvenile court awarded the maternal grandparents pendente
lite custody of the child. Thereafter, Robbins filed a motion
in the juvenile court alleging that he was the child's
legal father and seeking to set aside the pendente lite award
of custody to the maternal grandparents. Robbins later filed
a verified renewal of that motion and alleged, in pertinent
part, that, although the maternal grandparents had claimed
not to know the mother's whereabouts, "the mother
had stayed with them on the very night [the dependency]
petition was filed and every night before and after." It
is not clear whether the juvenile court ruled on
February 2, 2018, Robbins filed in the trial court a motion
to consolidate the dependency action with the divorce action.
On February 5, 2018, the parties executed a "temporary
agreement" specifying that the pending dependency action
would be dismissed and providing for pendente lite visitation
for Robbins with the child; that "temporary
agreement" was filed in the trial court on February 7,
2018. The juvenile court dismissed the maternal
grandparents' dependency action on February 5, 2018. On
February 15, 2018, the trial court entered an order
purporting to grant Robbins's motion to consolidate the
divorce action with the then-dismissed dependency action.
March 1, 2018, the mother filed in the trial court a motion
for a change of venue. In her motion, the mother alleged that
Robbins resides in Blount County, that she resides in St.
Clair County, and that the parties' marital residence was
located in Etowah County. The mother further alleged that, at
the time of their separation, the parties had resided in
Etowah County, and, she said, Robbins was still living in the
September 18, 2018, the trial court entered an order in which
it denied the mother's request for a change of venue,
directed the parties to abide by the terms of the February 5,
2018, temporary agreement, and ordered that Robbins and the
child submit to DNA paternity testing on October 5, 2018.
October 3, 2018, Robbins filed a petition for a writ of
mandamus in this court in which he challenged that part of
the September 18, 2018, order requiring DNA paternity
testing; Robbins's petition was assigned case number
2180012. In case number 2180012, this court stayed the
scheduled paternity testing pending further order of the
court and called for an answer.
October 5, 2018, the mother filed a petition for a writ of
mandamus challenging that part of the September 18, 2018,
order that denied her motion to transfer on the basis of
venue. The mother's petition for a writ of mandamus was
assigned case number 2180041, and this court called for an
answer in case number 2180041. Those petitions have now been
materials submitted to this court indicate that the trial
court conducted a hearing on April 26, 2018. Although none of
the materials submitted to this court indicate the nature of
that hearing or the issues considered, the mother alleges in
her petition for a writ of mandamus filed in case number
2180041 that, at that hearing, the trial court received
arguments on the issue of venue.
petition, the mother argues that venue was not proper in the
trial court, and, therefore, that the trial court erred in
denying her motion for a change of venue.
"Complaints 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."
§ 30-2-4, Ala. Code 1975.
This court has explained:
"'Venue, in a divorce action, lies in the county
where the parties resided at the time of the separation, not
in the county where the separation occurred. Norton v.
Norton, 48 Ala.App. 663, 267 So.2d 457 (Ala. Civ. App.
1972).' Ex parte Watkins, 555 So.2d 1098');">555 So.2d 1098, 1099
(Ala. Civ. App. 1989). 'This court also observed in
Watkins that "[t]he question of whether to
transfer a case because of venue addresses itself to the
sound discretion of the trial court, and any abuse of that
discretion may be controlled by the writ of mandamus."
[555 So.2d at 1099].' Carson v. Carson, 237
So.3d 889, 892 (Ala. Civ. App. 2017). Furthermore, '[t]he
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