Ex parte Tom Milton Rankin, Jr.
Tom Milton Rankin, Jr. In re: Jennifer Rebecca Rankin
Circuit Court, DR-18-900258
PETITION FOR WRIT OF MANDAMUS
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 divorce action.
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.
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.
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
for the six months preceding the filing of her October 2018
complaint prevented the trial court from assuming
subject-matter jurisdiction over the wife's divorce
husband further argues that, because the wife failed to
properly invoke the subject-matter jurisdiction of the trial
court, the trial court was required to dismiss her action,
and, he contends, the wife was not able to cure the defect in
her complaint by amendment. The husband relies on Redtop
Market, Inc., ex rel. Bolton v. State ex rel. Green, 66
So.3d 204, 206 (Ala. 2010), and State v. Property at 2018
Rainbow Drive, 740 So.2d 1025, 1028 (Ala. 1999)
("Rainbow Drive"), in support of his
argument that the wife's amendment to her complaint to
correct her averment regarding residency cannot cure the
defect in the divorce action. Certainly, when a trial court
lacks subject-matter jurisdiction over an action, a trial
court must dismiss that action. Green, 66 So.3d at
206. However, "[s]ubject-matter jurisdiction concerns a
court's power to decide certain types of
cases," Ex parte Seymour, 946 So.2d
536, 538 (Ala. 2006), and a circuit court has subject-matter
jurisdiction over a divorce action. See Ala. Code
1975, § 30-2-1. Furthermore, although the husband is
correct that Rainbow Drive stands for the
proposition that "a pleading purporting to amend a
complaint, which complaint was filed by a party without
standing, cannot relate back to the filing of the
original complaint, because there is nothing 'back'
to which to relate," Rainbow Drive, 740 So.2d
at 1028 (emphasis added), the continued viability of that
holding is in question. Our supreme court has explained that
the concept of standing should be confined to public-law
cases. Ex parte BAC Home Loans Servicing, LP, 159
So.3d 31, 46 (Ala. 2013).
cannot agree that the cases relied upon by the husband
support a conclusion that the wife was not permitted to amend
her divorce complaint to more specifically allege that she
had been an Alabama resident for the six months preceding the
filing of her complaint. Furthermore, we note that, although
the plaintiff wife in Wright had omitted language
about being a resident of the state for the
preceding the filing of her complaint, our supreme court
reversed the judgment of divorce and remanded the cause,
directing that the plaintiff wife "may have an
opportunity to amend" her complaint. 200 Ala. at 489, 76
So. at 431. Thus, although Wright indicates that the
failure to allege residency for the required period is
"jurisdictional," it also indicates that the filing
of an amendment to correct the omission is not precluded.
husband next argues that the trial court erred in failing to
dismiss the wife's divorce action on the basis of the
existence of the Tennessee divorce action. He relies on
Attenta, Inc. v. Calhoun, 97 So.3d 140, 146 (Ala.
2012), and Grimes v. Liberty National Life Insurance
Co., 726 So.2d 615, 617 (Ala. 1998) (quoting Ex
parte Burch, 236 Ala. 662, 665, 184 So. 694, 697
(1938)), to support his argument that "'where two or
more courts have concurrent jurisdiction, the one which first
takes cognizance of a cause has the exclusive right to
entertain and exercise such jurisdiction, to the final
determination of the action and the enforcement of its
judgments or decrees.'" However, both of those cases
apply the doctrine to two courts that possess concurrent
jurisdiction in the State of Alabama.
supreme court explained in Ex parte Buck, 291 Ala.
689, 691, 287 So.2d 441, 443 (1973):
"This Court has long been committed to the proposition
that the pendency of a suit upon the same cause of action in
another state is no cause of abatement of a suit
instituted in this state. In Humphries v. ...