Robertson v. Robertson
161 So. 3d 241
Ala. Civ. App.2014Background
- Former wife obtained sole physical custody; moved with children to Blount County after divorce in 2007.
- In 2014, former husband filed a petition to show cause in trial court alleging visitation interference.
- Former wife answered and then moved to transfer venue to Blount Circuit Court under § 30-3-5; later amended to include improper venue.
- Trial court held a hearing; on July 18, 2014, denied transfer; former wife petitioned for mandamus on July 1, 2014.
- Rule 12/15 amendments and timing were at issue: whether venue objection could be raised after initial responsive pleading.
- This Court granted mandamus, directing transfer to Blount Circuit Court; prior petition denied as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue objection was waived | Mundi timely amended pleading to include improper venue | Robertson asserts waiver due to late objection in pleadings | No waiver; timely amendment preserved venue challenge |
| Whether § 30-3-5 authorizes the custodial parent to choose venue | Mundi as current custodial parent can select venue | Venue should be determined by statutory framework with both counties | Mundi validly may choose venue under § 30-3-5 |
| Whether mandamus is proper to challenge venue | Mandamus is proper to review venue-change orders | Other remedies may exist; mandamus inappropriate | Mandamus proper remedy; court must transfer |
| Impact of amendment timing under Rule 12/Rule 15 | Amendment timely and justified; not prejudicial | Amendment late may prejudice | Amendment timely (>42 days before trial); no prejudice shown |
Key Cases Cited
- Ex parte Sawyer, 892 So.2d 898 (Ala.2004) (mandamus appropriate for challenging change of venue)
- Ex parte Inverness Constr. Co., 775 So.2d 153 (Ala.2000) (rules for mandamus standard and jurisdictional issues)
- Ex parte Gates, 675 So.2d 374 (Ala.1996) (outruns waiver and timing considerations for defenses)
- Ex parte Pfizer, Inc., 746 So.2d 960 (Ala.1999) (standard for invoking mandamus and defenses)
- Ex parte Fidelity Bank, 893 So.2d 1116 (Ala.2004) (Rule 12/15 interplay allowing amendment to assert Rule 12(b) defense)
- Ex parte Chamblee, 899 So.2d 244 (Ala.2004) (prematurity of petitions and related procedures)
- Ex parte Vest, 130 So.3d 566 (Ala.Ct.App.2011) (interpretation of compulsory counterclaims and venue)
- Minkoff v. Abrams, 539 So.2d 306 (Ala.Civ.App.1988) (amendment of responsive pleading to add Rule 12 defense)
- D.L.C. v. C.A.H., 764 So.2d 562 (Ala.Civ.App.1999) (permissible amendments to pleadings without prejudice)