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Ex parte K.W.

Alabama Court of Civil Appeals

August 16, 2019

EX PARTE K.W.
v.
K.A.W. In re: A.J.D.

Page 931

         (Jefferson Juvenile Court, CS-06-1957.04 and CS-06-1957.06) THOMPSON, Presiding Judge.

         Austin Burdick of Burdick Law Firm, Bessemer, for petitioner.

         Submitted of mandamus petition only.

         THOMPSON, Presiding Judge.

         K.W. ("the mother")[1] petitions this court for a writ of mandamus directing the Jefferson Juvenile Court ("the juvenile court") to vacate the juvenile court's May 17, 2019, order that, among other things, denied the mother's motion to dismiss filed in case no. CS-06-1957.06 ("the .06 action") and to enter an order dismissing that action. Additionally, the mother seeks mandamus relief directing the juvenile court to vacate any order or judgment entered after February 1, 2017, in a related action involving the same parties, case no. CS-06-1957.04 ("the .04 action"), which the juvenile court purported to consolidate with the .06 action. Both the .04 action and the.06 action involve disputes between the mother and A.J.D. ("the father") concerning the custody of, specifically the father's visitation with, their child ("the child"). The mother asserts that, under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, the juvenile court lacked subject-matter jurisdiction to entertain the .06 action and to enter any orders in the .04 action after it had entered a judgment dismissing that action on February 1, 2017[2], from which neither party appealed. On May 31, 2019, pursuant to Rule 21(b), Ala. R. App. P., this court called for answers to the petition to be filed, but none was received from the respondent juvenile-court judge or from the father. Therefore, in assessing the merits of the mother's petition, this court will "take the averments of fact in the ... petition as true." Ex parte Allison, 238 So.3d 1260, 1262 (Ala.Civ.App. 2017) 

Page 932

(citing Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002)).

         The petition and the materials the mother submitted to this court in support of her petition indicate the following. According to the petition, the mother and the father never married. The mother asserts that the father's paternity was established in 2006 and that he was ordered to pay child support of $304 each month at that time, but there are no court orders to that effect in the materials submitted to us. It appears that the paternity and child-support action in the juvenile court was designated case no. CS-06-1957.[3]

         In the petition, the mother asserts that the father served an "extended period" in prison and that he was unemployed at the time his child-support obligation was established. Included in the materials submitted to this court is a motion in which the mother stated that on September 16, 2008, the juvenile court entered an order directing the father to pay $129 each month toward a child-support arrearage that had accrued. There are no documents in the materials before us demonstrating that an action was filed to establish the father's arrearage. Also, the September 16, 2008, order is not included in the materials. However, the action resulting in the September 16, 2008, judgment was apparently designated as case no. CS-06-1957.02.

         In 2009 the mother and the child moved to Atlanta, Georgia, where they still reside. In January 2015, the father filed a petition in the juvenile court seeking visitation with the child. That petition was designated as case no. CS-06-1957.03 ("the .03 action"). According to the mother, the petition in the .03 action was dismissed because the father failed to timely serve the mother.

         On June 10, 2016, the father, appearing pro se, filed a second petition in the juvenile court seeking visitation with the child. That petition was designated as case no. CS-06-1957.04 ("the .04 action"). When that petition was filed, the father resided in Birmingham and, as mentioned, the mother and the child were living in Atlanta.

         On November 18, 2016, the mother filed a petition in the juvenile court for a rule nisi and for modification of the father's child-support obligation. Although it is not entirely clear from the materials before us, it appears that the juvenile court designated the mother's petition as case no. CS-06-1957.05 ("the .05 action"). In her petition, the mother alleged that, as of November 4, 2016, the father's child-support arrearage was $55,052.28. Furthermore, the mother alleged, the father had obtained employment since the entry of the 2006 judgment originally establishing child support. Therefore, she said, a material change in circumstances had occurred warranting a modification of his monthly child-support obligation.

         On February 1, 2017, the juvenile court entered the following judgment, apparently addressing both the .04 action and .05 action:

"The child and mother are both residents of the State of Georgia, Fulton County, and this court lacks jurisdiction to hear the ...

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