205 So. 3d 1245
Ala.2015Background
- Child born 2006 to E.S. (wife) and B.O.S. (husband); grandparents (O.S. and J.A.S.) lived next door and had frequent overnight care of the child.
- Grandfather proposed a "paper adoption" in 2007 to secure benefits; parents signed documents and a probate court entered an adoption judgment in 2008.
- Parents separated in 2010; husband filed for divorce and sought the child be returned to the grandparents; grandparents intervened and obtained pendente lite custody.
- Wife filed a counterclaim in circuit court seeking to set aside the probate adoption judgment, alleging fraud in obtaining consent and in the adoption petition.
- This Court previously held probate court has original jurisdiction over adoption contests and remanded (Ex parte O.S.). On remand the Court of Civil Appeals directed dismissal for lack of subject-matter jurisdiction rather than ordering transfer under Ala. Code § 12-11-11.
- Supreme Court reverses the Court of Civil Appeals: instead of dismissal, the case must be remanded with instructions to direct the circuit court to transfer the adoption-contest claim to probate court under § 12-11-11.
Issues
| Issue | Plaintiff's Argument (E.S.) | Defendant's Argument (Grandparents) | Held |
|---|---|---|---|
| Whether circuit court should have transferred the adoption-contest to probate under § 12-11-11 rather than dismissal | § 12-11-11 compels transfer to the proper court in the same county when a case belongs elsewhere; remand required transfer to probate | Agreed transfer is appropriate; grandparents did not oppose transfer and acknowledged § 12-11-11 authority | Supreme Court: Court of Civil Appeals erred; the proper remedy is transfer to probate under § 12-11-11, not dismissal |
| Whether Court of Civil Appeals’ remand complied with Supreme Court’s mandate (Ex parte O.S.) | Remand should have produced a transfer order consistent with this Court’s earlier holding that probate has jurisdiction over adoptions | Court of Civil Appeals treated remand as requiring dismissal; grandparents conceded transfer is permissible | Supreme Court found the Court of Civil Appeals’ dismissal inconsistent with prior mandate and reversed |
| Whether § 12-11-11 applies to transfers from circuit court to probate court (vertical transfer) | Section’s text and precedent (e.g., Kish) permit transfer to the proper county court, including probate | Grandparents accepted transfer; no contest to applicability | Supreme Court applied § 12-11-11 to require transfer here; dissent questioned historical scope but majority directs transfer |
| Whether Court of Civil Appeals properly denied rehearing on transfer request | E.S. argued rehearing should correct the remand to require transfer under § 12-11-11 | Grandparents did not oppose amendment to permit transfer | Supreme Court granted certiorari and decided remand must direct transfer; Court of Civil Appeals’ denial of rehearing reversed insofar as it directed dismissal |
Key Cases Cited
- Ex parte O.S., 205 So.3d 1233 (Ala. 2014) (Supreme Court held probate court has original jurisdiction over adoption proceedings and remanded)
- O.S. v. E.S., 205 So.3d 1219 (Ala. Civ. App. 2013) (Court of Civil Appeals’ earlier opinion describing factual background and trial-court proceedings)
- Kish Land Co. v. Thomas, 42 So.3d 1235 (Ala. Civ. App. 2010) (recognized a circuit-to-probate transfer under § 12-11-11 as proper in context)
- Bernals, Inc. v. Kessler-Greystone, LLC, 70 So.3d 315 (Ala. 2011) (where a court lacks subject-matter jurisdiction, orders other than dismissal are void)
- Cadle Co. v. Shabani, 4 So.3d 460 (Ala. 2008) (same principle: lack of jurisdiction limits court’s power to act)