Pierce v. PiercePierce v. Pierce
Lead Opinion
Lеslie Marie Pierce (“the mother”) filed a petition for a writ of mandamus regarding an order of the Madison Circuit Court (hereinafter “the trial court”) in which the trial court determined it had jurisdiction over a child-custody dispute between the mother and Ryan Buck Pierce (“the father”). The pertinent facts of this matter are undisputed.
The mother and the father were married on April 14, 2007. The parties resided in California until September 2007, when they moved to Alabama. A child was born to the parties on August 12, 2008.
On April 24, 2009, the mother and the child moved to Durango, Colorado, in order to live closer to the mother’s family. The father remained in Alabama for several months after the mother and the child moved to Colorado. The father visited the mother and the child in Colorado for two days in May 2009. In the underlying action, which was filed by the father in August 2009, the parties initially disputed whether the father had moved, albeit temporarily, to Colorado in July 2009, and the trial court received ore tenus evidence on the issue whether it had jurisdiction to consider the parties’ child-custody dispute. In a September 28, 2009, “pendente lite” order that is discussed more thoroughly later in this opinion, the trial court found that the father had left Alabama on July 24, 2009, with the intention of moving to Colorado. The father arrived in Colorado on July 26, 2009, but he had to return to Alabama on July 30, 2009, because of a medical emergency.
On August 4, 2009, the mother filed in the District Court of La Plata County, Colorado (hereinafter “the Colorado court”), an action seeking a divorce from the father. In her divorce complaint, the mother asked the Colorado court to “enter orders regarding the status of the marriage; best interest of the child; orders for child support; division of property and debts; and any other necessary orders.” Although the materials submitted to this court do not indicate that the mother expressly sought an award of custody of the parties’ child, under Colorado law the divorce complaint was sufficient to assert a claim for custody of the child in the Colorado court. See In re Marriage of Barnes,
On August 20, 2009, the father filed in the trial court a complaint seeking a divorce from the mother and asserting a separate claim for custody of the parties’ child. In seеking an award of custody, the father alleged that the trial court, rather than the Colorado court, had jurisdiction over the custody issue pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), § 30-3B-101 et seq., Ala.Code 1975. We note that both Alabama and Colorado have adopted the UCCJEA, see § 30-3B-101 et seq., Ala.Code 1975, and § 14-13-101 et seq., Colo.Rev.Stat. (2009). The pertinent sections of Colorado’s version of the UCCJEA are substantially the same as those adopted by Alabama.
The mother moved to dismiss the father’s divorce complaint, arguing that the trial court lacked subject-matter jurisdiction over the action. The mother also filed in the trial court a separate motion tо dismiss that part of the father’s divorce complaint seeking an award of custody of the child. In support of that motion to dismiss, the mother argued that, under the UCCJEA, the Colorado court had jurisdiction over the parties’ custody dispute.
The trial court conducted an ore tenus hearing and received evidence concerning the issue of which court had jurisdiction over the custody dispute. Thereafter, on September 23, 2009, the trial court entered its “pendente lite” order in which it, among other things, determined that it lacked subject-matter jurisdiction over the father’s divorce action but that, based on the facts presented to it at that time, it had subject-matter jurisdiction over the custody dispute. As part of its September 23, 2009, order, the trial court ordered the parties to arrange a telephone conference to allow the parties, the trial court, and the Colorado court to discuss the issues pertaining to jurisdiction over the custody dispute. On October 7, 2009, after that telephone conference, the trial court entered an order in which it, among other things, assumed jurisdiction over the parties’ custody dispute. The mother timely filed a petition for a writ of mandamus challenging that part of the trial court’s October 7, 2009, order in which it determined it had jurisdiction to consider the custody issue.
With regard to rеviewing an order pursuant to a petition for a writ of mandamus, our supreme court has stated:
“This Court has 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 this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clеarly abused its discretion. See Ex parte Rudolph,515 So.2d 704 , 706 (Ala.1987).”
Ex parte Flint Constr. Co.,
The mother contends that the trial court did not have jurisdiction over the parties’ claims seeking an initial custody determination. The UCCJEA provision governing jurisdiction over initial child-custody determinations states:
*450 “(a) Except as otherwise provided in Section 30-BB-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
“(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
“(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.”
The term “home state” is defined under the UCCJEA as follows:
“Home State. The state in which a child lived with a parent or a person acting as a parent for at leаst six consecutive months immediately before the commencement of a child custody proceeding. In the ease of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of the child or any of the mentioned persons is part of the period.”
In this case, the mother initiated her divorce action in Colorado approximately two weeks before the father filed, in the trial court, his complaint seeking a divorce and custody of the child. Therefore, the pоrtion of the UCCJEA pertaining to the existence of simultaneous custody proceedings was also implicated in this case. That section provides, in pertinent part:
“(a) Except as otherwise provided in Section 30-3B-204, a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state*451 is a more convenient forum under Section 30-3B-207.
“(b) Except as otherwise provided in Section 30-3B-204, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Section 30-3B-209. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a morе appropriate forum, the court of this state shall dismiss the proceeding.”
Under
During that telephone conference, the Alabama trial judge and the Cоlorado judge agreed that the question to be determined was whether the Colorado court had “jurisdiction substantially in conformity” with the provisions of the UCCJEA. See
Although the Colorado judge did not expressly state that he believed that the Colorado court did not have jurisdiction substantially in compliance with the UC-CJEA, he indicаted that he could not discern from the Colorado version of the UC-CJEA that, given the facts of this case, the Colorado court had jurisdiction to make an initial child-custody determination. The Colorado judge then stated that he would defer to the Alabama trial court on the issue of which state was the more convenient forum to resolve the parties’ custody dispute. We interpret the comments of the Colorado judge, as well as the entirety of the transcript of the telephone conference, as a determination by the Colorado court that it did not have jurisdiction “substantially in conformity” with the UC-CJEA to allow it to make an initial custody determination based on “home state” jurisdiction.
The mother does not contend that the Colorado court could exercise jurisdiction under a “home state” theory. Thus, she does not contend that Colorado could exercise jurisdiction under § 14-13-201(1)(a), Colo.Rev.Stat. (2009), the counterpart to
It is undisputed that the child had lived in Alabama from August 2008 through April 2009, or approximately nine months. On April 24, 2009, the mother and the child left Alabama and moved to Colorado. The mother filed her complaint for a divorce in the Colorado court on August 4, 2009, approximately three and a half months after she and the child moved to Colorado. Therefore, it is clear that the child had not lived in either Colorado or Alabama for the entire six months “immediately before the commencement” of either of the parents’ divorce complaints. See
However,
Rather, in arguing that the trial court had improperly determined it could exercise jurisdiction under
In asserting her arguments, the mother advocates an interpretation of the term “continues to live” that would equate it to the terms “residency” or “domicile,” as those terms have been interpreted by the courts in various situations. The specific authority cited by the mother interprets the residency requirements for jurisdiction over a divorce action filed pursuant to
The mother also cites In re Marriage of Barnes, supra, in which the parties, who had lived in Colorado during their marriage, moved to Virginia. After living in Virginia for five weeks, the wife returned to Colorado and filed a complaint seeking a divorce and custody of the parties’ children. The case involved a provision of the former Uniform Child Custody Jurisdiction Act (“UCCJA”) similar to the provision at issue in
The mother contends, and our research verifies, that no Alabama case
“ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ”
Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen,
“When interpreting a statute, this Court must read the statute as a wholе because statutory language depends on context; we will presume that the Legislature knew the meaning of the words it used when it enacted the statute. Ex parte Jackson,614 So.2d 405 , 406-07 (Ala.1993). Additionally, when a term is not defined in a statute, the commonly accepted definition of the term should be applied. Republic Steel Corp. v. Horn,268 Ala. 279 , 281,105 So.2d 446 , 447 (1958).”
Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue,
The mother asks this court to interpret the phrase “continues to live” as not allowing for the father’s temporary move to Colorado; she advocates a construction of the phrase that would equate “continues to live” with the terms “residence” or “domicile,” as those terms are used in determining jurisdiction over a divorce and the marital res under § 30-2-1 et seq., Ala. Code 1975. In determining the requirements for jurisdiction to make an initial custody determination under the UC-CJEA, however, our legislature did not require that parent be a “resident” of this state. It is clear, however, that the legislature was aware of the term “resident,” because that term is used in other parts of the UCCJEA. See
In enacting § 30—3B—201(a)(1), the Alabama legislature used the specific phrase “continues to live.” The father’s move to Colorado, while affecting a determination of his residence or domicile for purposes of
It is clear, however, that the family had lived in Alаbama from September 2007 until April 2009, and that, with the exception of the week in July 2009 giving rise to this issue, the father has continued to live in Alabama. We cannot say, given the’ specific facts of this case, that the trial court “clearly abused its discretion” in determining that it had jurisdiction pursuant to
Although the mother filed her action seeking a divorce in the Colorado court before the father filed his action in Alabama, we must disagree with the mother’s argument that the Colorado court should be the forum to determine whether Alabama or Colorado is the more convenient or appropriate forum in which to resolve the parties’ custody dispute. As we havе already stated, under the facts of this case, the Colorado court could exercise jurisdiction under its counterpart to
Given the specific facts of this case, this court affirms the trial court’s determination that, pursuant to
The trial court, in its October 7, 2009, order, considered the factors set forth in
“This Court does not find that the handling of this case by the Alabama court is any more inconvenient to the [mother] than would be the inconvenience to the [father] if the issues in this case were to be handled in the State of Colorado. As a result, this Court assumes jurisdiction of said issues.”
The mother has not asserted any argument that the trial court erred in reaching that factual determination. Accordingly, any such argument is deemed to have been waived. Ex parte Simpson,
PETITION DENIED.
Notes
. The materials submittеd to this court reveal that in June 2009 the father developed a medical condition that required surgery on one of his eyes. In July 2009, one of the father’s retinas detached, and he returned to Alabama for further treatment of that condition.
. The trial court noted during the telephone conference that the parties "agreed” that Alabama was the child’s home state. However, given the nature of the parties’ claims, their arguments asserted during the telephone conference, and the trial court’s and the Colorado court’s treatment of the parties’ arguments, we conclude that a better explanation of the parties’ agreement was that Alabama had been the child's home state "within six months before the commencement” of the father’s action in the trial court. See
. The trial court's specific findings in the September 23, 2009, order read as follows:
"This Court does find from the evidence, however, that it lacks subject-matter jurisdiction to enter a divorce between the parties based upon the Complaint for Divorce having been filed by the [father], without his satisfying the residency requirement of*453 six months as set forth in§ 30-2-5 , Code of Alabama (1975). This Court finds from the evidence presented at said hearing that the [father] moved from the State of Alabama on July 24, 2009, with his car packed full of belongings and the parties’ two family cаts; arriving in the State of Colorado on July 26, 2009, having rented a room for a month at an extended-stay motel; that he intended to find a more permanent place to live, find a job, go to marriage counseling with his wife in an effort to reconcile the parties’ marriage; and then move into a more permanent residence, such as an apartment, with his wife and child as a family. Even though he was required to leave the State of Colorado on July 30, 2009, because of a medical emergency relating to his eyes, he informed the [mother], when he left that he would be back. His relocation to the State of Colorado resulted in his residency in the State оf Alabama, for the purposes of§ 30-2-5 , Code of Alabama (1975), not starting until July 30, 2009. As a result, he had not been a bona fide resident of the State of Alabama for six months prior to the filing of this case by him. As to the request made by the [father], for this Court to enter a [judgment] divorcing the parties, the Motion to Dismiss Divorce Complaint filed by the [mother] is granted. However, the remaining claims for relief set forth in the Complaint for Divorce filed by the [father] shall remain pending before this Court, until further order.”
We also note that this court has not been asked to rule on the propriety of the trial court’s determination that it lacked jurisdiction pursuant to
. "Consistent with the holdings in Ex parte Ferguson, supra, and Livermore v. Livermore, supra, Black's Law Dictionary defines the term "reside” as meaning: "[to l]ive, dwell, abide, sojourn, stay, remain, lodge.... To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for
. As already indicated, we have confined this opinion to the specific facts of this case. The interpretation of the main opinion set forth in the last paragraph of the dissent is not the holding of the court.
. The relevant portions of the Colorado UC-CJEA provision read, in pertinent part:
*456 "(1) Except as otherwise provided in section 14-13-204, a court of this state has jurisdiction to make an initial child-custody determination only if:
“(a) This state is the home state of the child on the date of the commencement of the proceeding, or was tire home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(b) A court of another state does not have jurisdiction under a provision of law adopted by that state that is in substantial conformity with paragraph (a) of this subsection (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision of law adoрted by that state that is in substantial conformity with section 14-13-207 or 14-13-208, and:
"(I) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
"(II) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.”
§ 14-13-201(1), Colo.Rev.Stat. (2009).
Dissenting Opinion
dissenting.
I respectfully dissent from the main opinion because I cannot agree that the father “continues to live” in Alabama in accordance with
“(a) Except as оtherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent*457 from this state but a parent or person acting as a parent continues to live in this state.”
Pursuant to the above-quoted language, a court of this state has jurisdiction to make an initial custody determination when Alabama was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent “continues to live” in this state.
In ordinary parlance, the term “continue” means “to maintain without interruption a condition, course, or action” or “to remain in a place or condition.” Merriam-Webster’s Collegiate Dictionary 270 (11th ed.2003). See Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue,
That reading also comports with the general purposes of the UCCJEA, BP Exploration & Oil, Inc. v. Hopkins,
“(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
“(2) Promote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child;
“(3) Discourage thе use of the interstate system for continuing controversies over child custody;
“(4) Deter abductions of children;
“(5) Avoid relitigation of custody decisions of other states in this state;
“(6) Facilitate the enforcement of custody decrees of other states.”
In the present case, the trial court determined that the father had left Alabama on July 24, 2009, with the intention of moving permanently to Colorado. After living in Colorado for four days, the father returned to Alabama because of a medical
I believe the majority opinion places too much emphasis on the word “live” and not enough emphasis on the word “continues.” As I understand the majоrity’s interpretation, so long as a parent lives in this state at the time of the filing of the custody complaint, the parent satisfies the last clause of