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Ex parte Robbins

Alabama Court of Civil Appeals

November 30, 2018

Ex parte David Cole Robbins
v.
Jessie Burnett Robbins In re: David Cole Robbins Ex parte Jessie Burnett Robbins In re: David Cole Robbins
v.
Jessie Burnett Robbins

          Blount Circuit Court Nos. DR-18-900013, DR-18-900013

          PETITION FOR WRIT OF MANDAMUS

          THOMPSON, Presiding Judge.

         On 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.

         In a 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 Robbins's motion.

         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.

         On 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 marital home.

         On 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.

         On 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.[1]

         On 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 consolidated.

         The 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.

         In her 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 ...

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