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Ex parte Butcher

Alabama Court of Civil Appeals

December 6, 2019

EX PARTE Rebecca Marie BUTCHER (In re: Jeremy Allan Butcher
Rebecca Marie Butcher).

         Montgomery Circuit Court, DR-19-900329

Page 443

          Nicholas A. Jones of Jones, Hawkins & Associates, Montgomery, for petitioner.

          Jerry M. Blevins, Montgomery, for respondent.

         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

Page 444

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.

Page 445

          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 ...

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