Gray v. Gray
139 So. 3d 802
| Ala. Civ. App. | 2013Background
- Married in Florida (2009); moved to Alabama (2010).
- Mother left the marital home (July 2010) and gave birth to the child in Michigan (October 2010).
- Father filed for divorce in Alabama (September 2010); trial court later denied dismissal of custody issue (August 2011).
- Trial (November 2012) produced a divorce with joint custody but physical custody to mother; father appealing custody ruling.
- Central issue on appeal: whether Alabama had subject-matter jurisdiction to make an initial child-custody determination under UCCJEA.
- Court held that Alabama lacked jurisdiction because Michigan was the child’s home state; judgment on custody deemed void and appeal dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alabama had initial custody jurisdiction under UCCJEA | Gray argued Alabama home-state or other jurisdiction applied. | Gray contends Michigan is the child's home state; Alabama lacks jurisdiction. | Alabama had no jurisdiction; Michigan is the home state. |
| What constitutes the child's home state when the child is unborn at commencement | Home state should be Alabama under moratorium reasoning. | Home state should be Michigan based on birth and residence. | Unborn child cannot have a home state; home state determined by birth thereafter. |
| Application of home-state rule to unborns under § 30-3B-102(7) and § 30-3B-201 | Alabama could exercise jurisdiction despite unborn status. | Michigan becomes home state upon birth; Alabama lacks jurisdiction. | Michigan is the child’s home state; § 30-3B-201(a)(1) requires dismissal. |
| Whether any other provision could authorize Alabama jurisdiction | Other subsections could support jurisdiction. | No other subsection applies since Michigan has home-state jurisdiction. | No alternative basis for initial custody jurisdiction exists. |
| Effect of lack of jurisdiction on the judgment and appeal | Judgment valid despite jurisdictional defect. | Void judgment; appeal cannot proceed on void judgment. | Judgment void; appeal dismissed with instructions to set aside custody portion. |
Key Cases Cited
- Arnold v. Price, 365 S.W.3d 455 (Tex.App.2012) (unborn child home-state determination deferred until birth)
- Waltenburg v. Waltenburg, 270 S.W.3d 308 (Tex.App.2008) (no jurisdiction over unborn child; home state after birth determines custody)
- In re Custody of Kalbes, 733 N.W.2d 648 (Wis. Ct.App.2007) (birth/postnatal home-state considerations under UCCJA/UCCJEA lineage)
- In re Marriage of Tonnessen, 237 P.3d 239 (Colo.App.1996) (UCCJA considerations; unborn context and home-state concept)
- In re Marriage of Tonnessen, 941 P.2d 237 (Ariz.App.1997) (UCCJA home-state analysis; unborn consideration)
- Stewart v. Vulliet, 888 N.E.2d 761 (Ind.2008) (unborn child has no home state under UCCJA-specific view)
- Haywood v. Superior Court of Los Angeles, 92 Cal.Rptr.2d 182 (Cal.App.2000) (UCCJA-era approach to unborns and home-state relevance)
- Gullett v. Gullett, 992 S.W.2d 866 (Ky.Ct.App.1999) (unborn home-state considerations under predecessor UCCJA)