68 So. 3d 881
Ala. Civ. App.2011Background
- Mother seeks writ of mandamus to compel Elmore Circuit Court to vacate its denial of her motion to dismiss or transfer the father’s postdivorce proceeding.
- Father filed in Elmore Circuit Court on June 25, 2010 a request to modify custody and for contempt based on alleged violations of the divorce decree.
- Mother filed July 23, 2010 a motion to dismiss alleging improper venue in Elmore because Mobile proceedings were pending and the parties were not residents of Elmore County.
- Mother amended August 6, 2010 to seek transfer to Mobile Circuit Court and argued venue waiver by father in Mobile proceedings.
- Elmore Circuit Court denied the motion on September 29, 2010; the mother then petitioned this court for mandamus.
- The court granted the father’s motion to strike two pleadings attached to the mandamus petition, because those pleadings were not before the Elmore court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus is proper to review venue denial. | Vest | Vest | Mandamus denied; venue issue not shown for mandamus relief. |
| Whether § 6-5-440 bars the Elmore proceeding as a compulsory counterclaim. | Vest argues Elmore action is a compulsory counterclaim in Mobile. | Vest failed to prove counterclaim/waiver; not shown in record. | Not established; court denied relief on this theory. |
| Whether venue was improper in Elmore based on residency/mobile home facts. | Vest contends father resided in Mobile for over six months. | No evidentiary support in Elmore record to prove residency facts. | Denied due to lack of evidence. |
| Whether father waived venue objection by not objecting in Mobile proceeding. | Vest asserts waiver based on Mobile pleadings. | No Mobile pleadings before Elmore; waiver not proven in record. | No error; lack of evidence of waiver supported denial. |
Key Cases Cited
- Ex parte American Res. Ins. Co., 663 So. 2d 932 (Ala.1995) (mandamus review limited to record before trial court)
- Ex parte Pike Fabrication, Inc., 859 So. 2d 1089 (Ala.2002) (evidence-based venue rulings reviewed on record)
- Ex parte De Vega, 65 So. 3d 886 (Ala.2010) (mandamus review limited to facts before trial court)
- Ex parte Kane, 989 So. 2d 509 (Ala.2008) (limits on what record may be considered on review)
- Ex parte Breman Lake View Resort, L.P., 729 So. 2d 849 (Ala.1999) (two-action rule and resource efficiency in venue disputes)
- Ex parte Sawyer, 892 So. 2d 898 (Ala.2004) (mandamus is appropriate for venue rulings)
- Ex parte Children's Hosp. of Alabama, 931 So. 2d 1 (Ala.2005) (mandamus standards for relief)
- Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So. 2d 414 (Ala.1995) (compulsory counterclaims and § 6-5-440 context)
- Ex parte Canal Ins. Co., 534 So. 2d 582 (Ala.1988) (venue and related procedural considerations)
- Ex parte Pfizer, Inc., 746 So. 2d 960 (Ala.1999) (interpretation of rules on mandamus and venue)