Opinion
CL-2022-0864
10-21-2022
EX PARTE William Logan MOULTRIE (In re: Megan Nicole Serrato v. William Logan Moultrie)
Jerry M. Blevins, Montgomery, for petitioner. John V. Martine, Winfield, for respondent.
Jerry M. Blevins, Montgomery, for petitioner.
John V. Martine, Winfield, for respondent.
THOMPSON, Presiding Judge.
In March 2014, the District Court for the 324th Judicial District, Tarrant County, Texas ("the Texas court"), entered a judgment divorcing Megan Moultrie, now known as Megan Serrato ("the mother"), and William Logan Moultrie ("the father"). In pertinent part, in that judgment, the Texas court designated the mother and the father as "joint managing conservators" of the minor child born of the parties’ marriage, and it afforded the mother the power to designate the child’s primary residence and awarded the father times of "possession," i.e., visitation, with the child. In essence, under Texas law, the mother was awarded custody of the child and the father received rights of visitation. The Texas court entered a modification judgment on June 13, 2016; custody of the child remained with the mother, and the visitation provisions of the divorce judgment were modified.
On March 23, 2022, the mother filed in the Marion Circuit Court ("the trial court") a petition seeking to modify the Texas judgments. Under the Texas judgments, the mother has the equivalent of sole physical custody of the child under Alabama law. See § 30-3-151(5), Ala. Code 1975 (defining "sole physical custody" as a situation in which "[o]ne parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court"). In her petition, the mother asked that the father’s rights of visitation be modified to give him only supervised visitation with the child at her discretion. In her petition, the mother also alleged that she and the child reside at an address in Haleyville, but did not state how long she and the child have lived in Alabama, and she alleged that the father resides at an address in Michigan.
On April 29, 2022, the father filed in the trial court a notice of appearance for the limited purpose of seeking to dispose of the mother’s modification petition on the basis of a lack of subject-matter jurisdiction and a lack of personal jurisdiction. In his motion, which he designated as a motion to dismiss or, in the alternative, for a summary judgment, the father, among other things, pointed out that the mother had not attempted to register in the trial court the Texas judgments that she sought to modify, as is required by the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975.
The mother filed a response in opposition to the father’s motion to dismiss or, in the alternative, for a summary judgment, on June 8, 2022. In that response, the mother argued that, under the facts of this case, the UCCJEA did not require the registration of the Texas judgments. In support of her response, the mother submitted an affidavit in which she testified that she and the child had moved from Texas to Alabama "on or about May 24, 2019," and that she and the child had lived in Alabama for "over three years." In addition, the mother stated in her affidavit that the father has lived and worked in Michigan since before the June 2016 Texas modification judgment was entered. The mother testified in that affidavit that the child had always traveled by airplane to visit the father in Michigan.
On June 13, 2022, the mother filed in the trial court a verified motion to register the Texas judgments under the UCCJEA. In that verified motion, the mother again alleged facts pertaining to the subject-matter jurisdiction of the trial court, and she stated that the child had always traveled by airplane to visit the father in Michigan. In support of that motion, the mother submitted certified copies of the Texas judgments and a certified document detailing the father’s history in paying child support as required by those judgments.
Also on June 13, 2022, the father filed a notice of appearance for the limited purpose of opposing the registration in the trial court of the Texas judgments as it related to his arguments concerning the trial court’s purported lack of subject-matter jurisdiction and personal jurisdiction; specifically, he sought to strike the mother’s motion to register the Texas judgments in Alabama.
The trial court conducted a hearing on June 13, 2022, and, on June 16, 2022, it entered an order denying the father’s motion to dismiss, or, in the alternative, for a summary judgment. The trial court also entered a separate June 16, 2022, order denying the father’s motion to strike the mother’s motion to register the Texas judgments in Alabama. The trial court entered a third order on June 16, 2022, in which it granted the mother’s motion to register the Texas judgments in Alabama.
The father filed a timely petition for a writ of mandamus in this court on July 27, 2022. The materials submitted to this court indicate that on August 4, 2022, the mother filed in the trial court a motion asking the trial court to clarify its June 16, 2022, order denying the father’s motion to dismiss or, in the alternative, for a summary judgment. Specifically, the mother asked the trial court "to clarify the [June 16, 2022,] order [denying the father’s motion to dismiss] by recognizing on the record the facts that establish the subject-matter jurisdiction over the original petition filed in this case held by the courts of the State of Alabama pursuant to Article 2 of the UCCJEA." On August 4, 2022, the trial court entered an order containing findings that it had subject-matter jurisdiction over the mother’s modification action.
[1–4] " ‘Subject to certain narrow exceptions …, we have held that, because an "adequate remedy" exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.’ " Ex parte Kohlberg Kravis Roberts & Co., 78 So. 3d 959, 966 (Ala. 2011) (quoting Ex parte Liberty Nat’l Life Ins. Co., 825 So. 2d 758, 761-62 (Ala. 2002)). However, the issue of subject-matter jurisdiction is reviewable by way of a petition for a writ of mandamus. Ex parte U.S. Bank Nat’l Ass’n, 148 So. 3d 1060, 1065 (Ala. 2014); Ex parte Rhodes, 144 So. 3d 316, 318 (Ala. 2013). Similarly, the issue of an alleged lack of personal jurisdiction is also subject to review by way of a petition for a writ of mandamus. Ex parte Auto-Source Motors, LLC, 156 So. 3d 397, 402 (Ala. 2014); Ex parte Duck Boo Int’l Co., 985 So. 2d 900 (Ala. 2007).
" ‘[Our appellate courts have] consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the 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 Mercury Fin. Corp., 715 So. 2d 196, 198 (Ala. 1997). Because mandamus is an extraordinary remedy, the standard by which [an appellate court] reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So. 2d 704, 706 (Ala. 1987).’ "
Ex parte Alabama Dep’t of Hum. Res., 227 So. 3d 519, 521 (Ala. Civ. App. 2017) (quoting Ex parte Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000)).
[5, 6] In his petition for a writ of mandamus filed in this court, the father argues, among other things, that the trial court erred in denying his motion to dismiss or, in the alternative, for a summary judgment because, he says, the trial court did not have personal jurisdiction over him. We conclude that the father’s argument concerning personal jurisdiction is dispositive of this matter. " ‘An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.’ " Ex parte Duck Boo Int’l Co., 985 So. 2d at 905 (quoting Elliott v. Van Kleef, 830 So. 2d 726, 729 (Ala. 2002)).
[7] In Alabama, even if a trial court has subject-matter jurisdiction under the UCCJEA (an issue we do not reach in resolving this matter), it must also have personal jurisdiction over the parties. Ex parte Vega-Lopez, 297 So. 3d 1273, 1277 (Ala. Civ. App. 2019). Under the Model Uniform Child Custody Jurisdiction and Enforcement Act ("the Model Act"), a court presiding over an action concerning the custody of a child is not required to have personal jurisdiction over a parent. Official Comment to § 30-3B-201, Ala. Code 1975; Ex parte Diefenbach, 64 So. 3d 1091, 1096 (Ala. Civ. App. 2010). However, Alabama’s version of the UCCJEA omits the provision contained in the Model Act that specifies that personal jurisdiction is not necessary to make a child-custody determination. See § 30-3B-201; Ex parte Diefenbach, 64 So. 3d at 1096-97. The Alabama Comment to § 30-3B-201 explains, in part:
"This section is similar to Section 201 of the [Model] Uniform Child Custody Jurisdiction and Enforcement Act except that subsection (c) deletes the language ‘or personal jurisdiction over a party or.’ The effect of this is to continue Alabama’s long standing practice of requiring personal jurisdiction over a party in a child custody determination."
Thus, the father correctly argues that the trial court is required to have personal jurisdiction over him to validly consider and rule on the mother’s modification petition. Ex parte Diefenbach, supra.
This court explained in Ex parte Diefenbach, supra:
"Jurisdiction over a nonresident defendant may be obtained through Alabama’s long-arm rule, Rule 4.2, Ala. R. Civ. P., which governs service of process on out-of-state residents; that rule provides, in pertinent part:
" ‘(b) Basis for Out-of-State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States
64 So. 3d at 1098. Thus, under Rule 4.2, Ala. R. Civ. P., the trial court could exercise jurisdiction over the father, who resides in Michigan, only so long as he had " ‘ "some minimum contacts with this state [so that] … it is fair and reasonable to require the [father] to come to this state to defend an action." ’ " Ex parte McNeese Title, LLC, 82 So. 3d 670, 673 (Ala. 2011) (quoting Dillon Equities v. Palmer & Cay, Inc., 501 So. 2d 459, 461 (Ala. 1986), quoting in turn former Rule 4.2(a)(2)(I), Ala. R. Civ. P., the predecessor to Rule 4.2(b)); see also Ex parte Diefenbach, 64 So. 3d at 1098.
[8] The mother, as the plaintiff in the modification action, had the burden of establishing that the trial court had personal jurisdiction over the father. Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So. 2d 519, 525 (Ala. 2003); Ex parte Vega-Lopez, 297 So. 3d at 1278; Ex parte Diefenbach, 64 So. 3d at 1098.
"‘"‘In considering a Rule 12(b)[ ], Ala. R. Civ. P., motion to dismiss for want of … jurisdiction, a court must consider as true the allegations of the plaintiff’s complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir. 1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F. 2d 829 (11th Cir. 1990), and "where the plaintiff’s complaint and the defendant’s affidavits conflict, the … court must construe all reasonable inferences in favor of the plaintiff." Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)). "For purposes of this appeal …, the facts as alleged by the … plaintiff will be considered in a light most favorable to him [or her]." Duke v. Young, 496 So. 2d 37, 38 (Ala. 1986).’ " ’
"Ex parte Barton, 976 So. 2d 438, 442-43 (Ala. 2007) (quoting Ex parte Puccio, 923 So. 2d 1069, 1072 (Ala. 2005), quoting in turn Ex parte McInnis, 820 So. 2d 795, 798 (Ala. 2001))."
Ex parte J.R.H., 292 So. 3d 636, 640 (Ala. Civ. App. 2019).
In this case, there are no conflicting affidavits on the issue of the trial court’s possible personal jurisdiction over the father. The only information concerning facts pertinent to the issue of personal jurisdiction is set forth in the mother’s filings in the trial court. The father has argued that the allegations in the mother’s modification petition were insufficient to warrant a conclusion that the father has sufficient contacts with Alabama for this state to have personal jurisdiction over him pursuant to Rule 4.2.
[9] In her modification petition, the mother made no allegations relevant to the issue whether the trial court might exercise personal jurisdiction over the father. Other than allegations concerning the reasons she sought to modify the father’s visitation with the child, the mother alleged only that the father lived at an address in Michigan. Even assuming that this court considered the mother’s affidavit submitted in support of her response to the father’s motion to dismiss or, in the alternative, for a summary judgment and the assertions in her verified motion to register the Texas judgments in Alabama, those filings contain little additional evidence on the issue of personal jurisdiction. In those filings, the mother alleged only that the father lives and works in Michigan, has lived there since before the June 2016 Texas modification judgment was entered, and that the child travels to Michigan to visit the father. Before the trial court, the mother made no allegation and presented no evidence concerning any contacts that the father might have with Alabama.
"[W]hen the complaint fails to allege any jurisdictional basis, ‘there is nothing in the complaint … that the court must consider as true and that therefore places [any] burden on [the defendant] to controvert by affidavit.’ [Ex parte] Excelsior[Fin., Inc., 42 So. 3d 96,] 104 [(Ala. 2010)] (defendant need not present evidence of absence of jurisdiction when the complaint contains no jurisdictional averments)."
Ex parte McNeese Title, LLC, 82 So. 3d at 674. "In other words, the failure of the complaint specifically to identify any factual basis for the assertion of personal jurisdiction relieves the objecting defendant of the burden of producing evidence negating jurisdiction." Ex parte Northstar Battery Co., 99 So. 3d 1204, 1207 (Ala. 2012). The mother’s filings in the trial court contain no information concerning any contacts with Alabama that the father might have that would allow the trial court to exercise personal jurisdiction over the father.
In her reply brief, the mother has argued that she alleged in her modification petition, and that the father has not disputed, that "since the date that Alabama became the child’s home state, the father has continued to exercise his rights and responsibilities of co-parenting the child, which has necessitated multiple actual contacts to the State of Alabama to arrange for the child’s travel between Alabama and Michigan." The mother argues that the Texas judgments afforded certain rights to the father, such as the right to information about the child’s medical history and education and a right to have input with regard to those issues. The mother contends in her reply brief filed in this court that those rights were "directly related to [the father’s] maintenance of his legal role" as the father of the child and, therefore, that the exercise of those rights "has necessitated multiple actual contacts" in Alabama, for example to "arrange for the child’s travel between Alabama and Michigan."
We disagree with the contention in the mother’s brief that she asserted in her modification petition any such argument or allegation, or any allegation regarding any contacts the father might have with Alabama, much less any statement that is similar to those she has set forth in her reply brief. In Beale v. Haire, 812 So. 2d 356 (Ala, Civ. App. 2001), this court reject- ed an argument that a father who resided in another state had sufficient contacts with Alabama under former Rule 4.2 so as to afford Alabama personal jurisdiction over him. The mother in that case appealed the dismissal of her action and argued that the father in that case had visited the children in Alabama. However, this court affirmed the dismissal of the mother’s action, explaining, in part:
"[W]e note that [former Rule 4.2(a)(2)(I)] provides that for an Alabama court to have jurisdiction over a nonresident defendant it must be ‘fair and reasonable’ to require that defendant to come to this state to defend a legal action. The mother’s description of the father’s contacts with Alabama is sketchy, at best. Her statement that the father ‘has visited our children’ in Alabama is insufficient in detail for us to conclude that his visits provided contacts sufficient to give an Alabama court jurisdiction. We reject her contention that the father’s visit to Alabama for the purpose of undergoing a family psychological assessment brought him under the provisions of [former] Rule [4.2](a)(2); that visit was not voluntary on the father’s part, but was called for by a postjudgment order from the divorce court in Maine."
Beale v. Haire, 812 So. 2d at 357-58. See Ex parte Reindel, 963 So. 2d 614, 618 (Ala. 2007) ("[T]he ultimate question under Rule 4.2(b)[, Ala. R. Civ. P.,] is the same as under former Rule 4.2(a)(2)(I)[, Ala. R. Civ. P.], namely, whether the out-of-state defendants have ‘some minimum contacts with the state [that] … it is fair and reasonable to require [them] to come to this state to defend an action.’ ").
In Coleman v. Coleman, 864 So. 2d 371 (Ala. Civ. App. 2003), the parties, who had been living in Tennessee, married in Huntsville in 1994 but returned to live in Tennessee until 2001. In 2001, the parties separated; the wife moved, with the parties’ two children, to Alabama; and the husband moved to Mississippi. The wife filed a complaint in Alabama seeking a divorce and an award of custody of the children. The husband moved to dismiss that action, arguing that the Alabama trial court did not have personal jurisdiction over him merely because he had married in Alabama in 1994 and had visited the children here twice after 2001. This court held that the Alabama trial court had jurisdiction to divorce the parties. Coleman v. Coleman, 864 So. 2d at 374 (citing § 30-2-5, Ala. Code 1975). However, this court held that, to resolve issues such as custody of the children, the Alabama trial court was required to have personal jurisdiction over the husband pursuant to former Rule 4.2. This court explained:
"It is well settled that the wife’s unilateral activity in moving to Alabama cannot satisfy the requirement that the husband have ‘minimum contacts’ with Alabama sufficient to subject him to a lawsuit in this state. Sena v. Sena, 709 So. 2d 48, 50 [(Ala. Civ. App. 1998)] (quoting Lightell v. Lighted, 394 So. 2d 41 (Ala. Civ. App. 1981)). It is essential in each case that there be some act by which the nonresident ‘purposely avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L.Ed. 2d 1283 (1958). In the instant case, the record contains no evidence of any contacts the husband has with Alabama that would make it ‘reasonable and fair’ to require him to defend the wife’s claims in this State."
Coleman v. Coleman, 864 So. 2d at 374-75.
In this case, even assuming that the mother had made in her modification petition allegations similar to those she claims in her reply brief filed in this court, those allegations are only that the father has had unspecified "contacts" with Alabama in arranging visitation for the child and in discussing the child with her or others who reside in Alabama. The mother did not allege circumstances that would make it "reasonable and fair" to require the father to defend her action in Alabama’s courts. Coleman v. Coleman, supra; Beale v. Haire, supra; Ex parte Reindel, supra.
This court is not at liberty to rewrite § 30-3B-201. The mother failed to present evidence demonstrating that the trial court had personal jurisdiction over the father. Accordingly, we hold that the trial court erred in denying the father’s motion to dismiss or, in the alternative, for a summary judgment on that basis. We issue the writ of mandamus and direct the trial court to dismiss the mother’s action filed in that court. We pretermit discussion of the other arguments raised in the father’s petition for a writ of mandamus. Ex parte Vega-Lopez, 297 So. 3d at 1282 ("Because the trial court’s lack of personal jurisdiction and temporary emergency jurisdiction is dispositive and we are granting the petition and issuing the writ of mandamus on that basis, we pretermit any discussion of whether the trial court lacked subject-matter jurisdiction under § 30-3B-201."); Ex parte Krukenberg, 252 So. 3d 676, 682 (Ala. Civ. App. 2017) ("In light of our determination that the circuit court lacks in personam jurisdiction over the mother, we pretermit consideration of her other arguments.").
PETITION GRANTED; WRIT ISSUED.
Moore, Edwards, Hanson, and Fridy, JJ., concur.