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Holloway v. Watson

Alabama Court of Civil Appeals

January 4, 2019

Brenda Holloway
v.
Justin Watson

          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 ...

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