Montgomery Circuit Court, DR-19-900329
PETITION FOR WRIT OF MANDAMUS
THOMPSON, PRESIDING JUDGE
Rebecca
Marie Butcher ("the mother") petitions this court
for a writ of mandamus directing the Montgomery Circuit Court
("the trial court") to grant her motion to dismiss
the divorce action filed by Jeremy Allan Butcher ("the
father") on the ground that the trial court lacks
subject-matter jurisdiction. One child ("the
child") was born of the parties' marriage, and, the
mother contends, Alabama is not the child's home state.
As a result, the mother asserts, the trial court lacks
subject-matter jurisdiction under Alabama's version of
the Uniform Child Custody Jurisdiction Enforcement Act
("the UCCJEA"), § 30-3B-101 et seq., Ala. Code
1975.
The
materials before this court indicate the following. On July
29, 2019, the trial court held a hearing on the issue of
subject-matter jurisdiction. A transcript of that hearing is
included in the materials the mother submitted in support of
her petition for a writ of mandamus. The evidence adduced at
that hearing indicates that the father serves in the United
States Air Force. On February 11, 2015, the parties married
in Montgomery. The father was stationed at Gunter Air Force
Base in Montgomery and had lived in Alabama for about a year
at that time. The mother is originally from South Carolina,
but she had moved to Alabama, where she worked as a
registered nurse at a Montgomery hospital. On February 14,
2017, the child was born in Montgomery.
The
family continued to live in the Montgomery area until
September 29, 2018, when the mother and the child moved to
Findlay, Ohio. At that time, the father was preparing to
deploy to Djibouti, in Africa, for six months. The
father's parents lived in Findlay, Ohio. The mother
testified that the purpose of the move was for her to be
close to the father's family during his deployment so
that she would have a "support system" nearby and
to "build a foundation for a future in Ohio." She
said that the father's term of enlistment was to be over
in September 2019 and that he was going to separate from the
Air Force. The mother testified that the father was then
going to move to Ohio.
At the
July 29, 2019, hearing, the father disputed much of the
mother's testimony. He testified that, although his
enlistment was set to end in September 2019, he was
"working through paperwork" to reenlist and that he
did not intend to leave the Air Force. Upon reenlistment, the
father said, he would continue to be stationed at Gunter Air
Force Base. He explained that, as a computer-software
developer, he was not required to move often. The father also
said that he had made Alabama his permanent state of
residence approximately five years earlier.
The
father testified that the mother made the decision to live
near his parents in Ohio during his deployment rather than
returning to South Carolina, where her parents lived. He said
his parents were going to have "some surgeries and
stuff" and that the mother had wanted to "help out
with them." He said that, initially, the mother and the
child were going to live in Ohio just during his deployment.
When he returned from Djibouti, the father testified, the
family planned to resume living in Alabama. In January 2019,
about three months into his deployment, the mother "was
pretty certain she was going to stay" in Ohio, the
father said. It was at that time that the parties began
discussing obtaining a divorce.
While
in Ohio, the father said, the child was staying with his
parents. He said that he "video chatted" with the
child almost every day and that, during those chats, she was
at the father's parents' house. Also, the father said
that he had accumulated "numerous" medical bills
for the child resulting from his parents' having taken
her to doctors' appointments for checkups and illness.
The bills were addressed to the father at his parents'
house.
The
mother testified that, when the father returned from Djibouti
in April, he came to Ohio and visited the child for
approximately two weeks. He then returned to Alabama. The
mother said that, on Tuesday, May 15, 2019, the father
returned to Ohio, picked up the child at his parents'
house, and returned to Alabama with the child without the
mother's knowledge or consent. The father agreed with the
mother's testimony on that point. He also testified that
all of the child's clothing and toys were at his
parents' house. The father said that he brought the child
back to Alabama to live with him because it "was her
home."
On May
20, 2019, the father filed a complaint for a divorce in the
trial court. In the complaint, the father sought sole
physical custody of the child and an equitable division of
the marital property, among other things. On June 18, 2019,
the mother filed a motion to dismiss the father's divorce
complaint, asserting, as previously mentioned, that the trial
court did not have subject-matter jurisdiction because, she
alleged, Alabama was not the child's home state under the
UCCJEA. On June 24, 2019, the mother filed a complaint for a
divorce in Ohio. She also sought an order of custody of the
child. The mother testified that the Ohio court granted her
request and ordered that the child not be removed from Ohio
without the consent of the other party. The child was already
in Alabama at the time.
On
September 5, 2019, the trial court entered an order denying
the mother's motion to dismiss. In that order, the
trial-court judge explained that he had conferred with the
judge of the Ohio court and that they both agreed that
"the Ohio pleadings were subsequent to the Alabama
pleadings, that Alabama is the current residence of the
[father] and the prior residence of the [mother], and that
Alabama is the proper jurisdiction on the issue of the
marriage, divorce and custody. The Court further noted
several deficiencies and/or misrepresentations in the Ohio
filing such that the [mother] did not properly alert the
Court as to the proceeding in Alabama so that an initial
deferral of jurisdiction could be made at the outset. The
initial communication between the courts left no issue that
was in dispute among the conferring Judges or Judicial
Officials, or that were otherwise in question under [the]
UCCJEA such that an immediate agreement and decision on
jurisdiction could not be reached. Both courts agreed that
Alabama was the proper jurisdiction as to all issues relative
to the divorce of the parties and custody of the child born
of the marriage; the State of Ohio thereafter relinquished
any purported jurisdiction."
On
October 17, 2019, the mother filed her petition for a writ of
mandamus. As she did in the trial court, the mother asserts
that the trial court lacks subject-matter jurisdiction
because, she says, Alabama is not the child's home state.
The mother did not address the issue of the trial court's
jurisdiction over the divorce and the marital res.
Nevertheless, she argues, she is entitled to a writ of
mandamus directing the trial court to dismiss the
father's divorce action in its entirety. "We note
that a lack of subject-matter jurisdiction may be raised at
any time, and that the question of subject-matter
jurisdiction is reviewable by a petition for a writ of
mandamus. Ex parte Johnson, 715 So.2d 783, 785 (Ala.
1998)." Ex parte Flint Constr. Co., 775 So.2d
805, 808 (Ala. 2000).
"Mandamus is an extraordinary remedy. An appellate court
will grant a petition for a writ of mandamus only when
'(1) the petitioner has a clear legal right to the relief
sought; (2) the respondent has an imperative duty to perform
and has refused to do so; (3) the petitioner has no other
adequate remedy; and (4) this Court's jurisdiction is
properly invoked.' Ex parte Flint Constr. Co.,
775 So.2d 805, 808 (Ala. 2000) (citing Ex parte Mercury
Fin. Corp., 715 So.2d 196, 198 (Ala. 1997)). Review by
mandamus is not appropriate where the petitioner has another
adequate remedy, such as an appeal. Ex parte
Jackson, ...