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Ex parte Rankin

Alabama Court of Civil Appeals

April 12, 2019

EX PARTE Tom Milton RANKIN, Jr.
v.
Tom Milton Rankin, Jr. In re: Jennifer Rebecca Rankin

Page 934

          Petition for Writ of Mandamus (Elmore Circuit Court, DR-18-900258). Sibley G. Reynolds, Judge

         Jerry M. Blevins, Montgomery, for petitioner.

         Chip Cleveland of The Cleveland Firm, LLC, Pratville, for respondent.

         OPINION

         EDWARDS, Judge

          In October 2018, Jennifer Rebecca Rankin ("the wife") filed in the Elmore Circuit Court ("the trial court") a complaint seeking a divorce from Tom Milton Rankin, Jr. ("the husband"). The husband filed a motion to dismiss the wife’s complaint, arguing that the trial court lacked subject-matter jurisdiction over the wife’s divorce action because the wife had failed to aver in her complaint that she had been a resident of Alabama for the six months preceding the filing of her complaint as required by Ala. Code 1975, § 30-2-5, and because the pendency of a divorce action initiated by the husband in Tennessee ("the Tennessee divorce action") precluded the continuation of the wife’s divorce action. The husband attached to his motion certain pleadings and orders from the Tennessee

Page 935

divorce action.[1]

          At a hearing, the trial court "partially addressed" the motion to dismiss; in its order entered after that hearing on January 9, 2019, the trial court stated that the wife would have 30 days to amend her complaint. The wife amended her complaint on January 29, 2019, after which the husband filed a renewed motion to dismiss, in which he reasserted his earlier arguments and contended that, because the wife’s complaint did not properly invoke the subject-matter jurisdiction of the trial court, the wife’s amendment to her complaint did not cure the lack of subject-matter jurisdiction. The trial court denied the husband’s motion to dismiss on February 15, 2019. The husband filed this petition for the writ of mandamus on February 25, 2019.

" ‘A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’
"Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001). ‘A petition for a writ of mandamus is a proper means by which to seek review of a question of subject-matter jurisdiction.’ Ex parte Williford, 902 So.2d 658, 662 (Ala. 2004)."

Ex parte Ferguson, 15 So.3d 520, 521 (Ala.Civ.App. 2008).

         The husband first argues that the wife’s failure to allege in her initial complaint that she had been a resident of Alabama for the six months immediately preceding the filing of her complaint is a jurisdictional defect that prevented the trial court from obtaining jurisdiction over the wife’s divorce action. The wife alleged that she lived in Wetumpka, Elmore County, that the parties had been married in Wetumpka in May 2014, and that the parties had separated while both were residents of Elmore County; however, she did not specifically allege that she had been a resident of Alabama for the six months preceding her filing of the complaint for a divorce.

         Section 30-2-5 reads: "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." The husband relies on § 30-2-5 and Wright v. Wright,200 Ala. 489, 76 So. 431 (1917). As the husband contends, Wright states that "[t]he failure of the [complaint] to show complainant’s residence, as required by the statute, was a defect of substance, of jurisdiction, not of mere form." Wright, 200 Ala. at 489, 76 So. at 431. Based on that language, the husband contends that the failure of the wife to allege that she had been an Alabama resident ...


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