Appeal
from Baldwin Circuit Court (DR-17-901526)
THOMPSON, PRESIDING JUDGE.
Brenda
Holloway ("the maternal grandmother") appeals from
a judgment of the Baldwin Circuit Court ("the trial
court") disposing of her petition to establish
grandparent visitation with the child ("the child")
born of the marriage between the maternal grandmother's
daughter, Carla Danielle Watson ("the mother"), and
Justin Watson ("the father"). The mother died of
ovarian cancer in February 2012.
The
record indicates the following. The maternal grandmother
filed her verified petition seeking visitation with the child
on December 12, 2017. At that time, the father and the child
lived in Baldwin County; it is unclear where the maternal
grandmother resided. In the petition, the maternal
grandmother stated that the child was born on February 9,
2010. In an affidavit submitted as an exhibit to his motion
to dismiss the maternal grandmother's petition, the
father testified that, about one year after the child's
birth, the mother was diagnosed with ovarian cancer. Upon the
mother's diagnosis, the father said, the child lived with
the maternal grandmother for about two months while the
mother began receiving cancer treatment in Birmingham. By the
late spring or early summer of 2011, the father said, the
mother, the child, and he had moved into a rental house the
maternal grandmother owned in Hartselle. The father also said
that the child had not lived with the maternal grandmother,
or had a relationship with her, since February 2012, when the
mother died.
In the
visitation petition, the maternal grandmother stated that she
had "established 'a significant and viable
relationship with the child'" and, further, that she
had "the 'capacity to give the child love, affection
and guidance.'" The maternal grandmother averred
that the loss of an opportunity for the maternal grandmother
and the child to maintain a significant and viable
relationship was "reasonably likely to cause harm to the
child." In opposing the father's motion to dismiss,
the maternal grandmother submitted an affidavit in which she
testified that the child had lived primarily with her from
the time the child was eight months old until she was nearly
two years old. In her response to the motion to dismiss, the
maternal grandmother averred that the father had
"blocked" and "hidden" the child from her
by changing his telephone number and disconnecting or
deleting other means of communication between them, adding
that the father "should not be granted protection when
he is primarily at fault" for hiding the child and
refusing the numerous gifts and cards the maternal
grandmother had sent to the child. She also said in her
affidavit that, because the mother was no longer living, it
was "crucial" for the child to have a continued
relationship with the mother's family.
On June
19, 2018, the trial court held a hearing on the motion to
dismiss. At that hearing, the maternal grandmother submitted
several photographs of the child taken when the child had
been with her. She also submitted scores of photographs of
the gifts and cards she had sent to the child after the
mother died. On June 20, 2018, the trial court entered a
one-sentence judgment granting the father's motion to
dismiss. We note that, in the judgment, the trial court
stated that, in entering the judgment, it took "the
testimony under submission." We clarify that the
transcript of the hearing indicates that no oral testimony
was given and that the only testimony appearing in the record
is the parties' affidavits submitted in support of and in
opposition to the father's motion to dismiss. The
maternal grandmother timely filed a notice of appeal to this
court.
On
appeal, the maternal grandmother first contends that the
trial court erred in disposing of the visitation petition
based on a lack of subject-matter jurisdiction or the
untimeliness of the filing of the visitation petition, the
two grounds the father presented to the trial court for
dismissal.
In
their appellate briefs, neither party explains why the trial
court would not have subject-matter jurisdiction over this
matter. "Matters of subject-matter jurisdiction are
subject to de novo review." DuBose v. Weaver,
68 So.3d 814, 821 (Ala. 2011).
Section
30-3-4.2(b), Ala. Code 1975, provides, in pertinent part,
that
"[a] grandparent may file an original action in a
circuit court where his or her grandchild resides ... for
reasonable visitation rights with respect to the grandchild
if any of the following circumstances exist:
"(1) ... the marital relationship between the parents of
the child has been severed by death or divorce."
See also Ex parte K.J., [Ms. 2170716, June 22, 2018]
So. 3d___, ___ n. 2 ("[A] circuit court generally has
subject-matter jurisdiction over petitions seeking only
grandparent visitation."). There is no dispute regarding
the maternal grandmother's contentions that the child
lives in Baldwin County and that the marital relationship
between the mother and the father was severed by the
mother's death. Therefore, the trial court clearly had
subject-matter jurisdiction over the grandmother's
grandparent-visitation petition.
The
father also contends that, at the time the maternal
grandmother filed the petition, she had not seen or spoken
with the child in more than three years. Therefore, he
argues, pursuant to § 30-3-4.2(d), Ala. Code 1975, the
trial court could not entertain the petition. Section
30-3-4.2(d) provides that,
"[t]o establish a significant and viable relationship
with the child, the petitioner shall prove by clear and
convincing ...