456 So. 2d 83 | Ala. Civ. App. | 1984
This is a divorce contest.
Delma Ann Williams, wife, and Terry David Williams, husband, were married in Columbia, South Carolina, February 5, 1982, while husband was on military leave from his assignment in Germany. Wife was a life-long resident of Alabama until approximately two years prior to the marriage, when she went to South Carolina to be near her future husband, then stationed at Fort Jackson, South Carolina. Husband's permanent residence is North Carolina.
Following the marriage of the parties, husband returned to his then duty station in Germany, and wife returned to her home, Ozark, Alabama. On December 22, 1983, wife filed for divorce in Dale County Circuit Court, seeking relief by personal judgment against husband for alimony, a division of property, assumption of debts and attorney fees. Husband was served by certified mail at his off-post address in Tacoma, Washington, on December 29, 1983, and at his duty assignment address at Fort Lewis, Washington on January 5, 1984. Husband by special appearance filed a motion to dismiss, asserting lack of jurisdiction of the subject matter and over the person of husband. Husband subsequently filed this petition for writ of mandamus with this court.
The issue husband raises by mandamus is whether the trial court has in personam jurisdiction over husband.
Rights sought to be enforced by a writ of mandamus must be clear and certain with no reasonable basis for controversy about the right to relief, as a writ will not issue where the right in question is doubtful. Ex parte Dorsey Trailers, Inc.,
The supporting affidavits submitted by both parties contain conflicting statements, both with regard to whether husband had sufficient minimum contacts with the State of Alabama to warrant in personam jurisdiction [See, International Shoe Co.v. State of Washington,
Thus, in this case since there are conflicting affidavits regarding the existence of in rem and in personam jurisdiction, and husband has not shown in his petition a clear and uncontroverted right as a matter of law to the relief sought, his writ must be denied.
We note that after hearing the evidence the trial court may determine whether it *85
has either in rem or in personam jurisdiction and dismiss all or part of the suit accordingly, which decision husband or wife may then challenge through the appropriate appeals procedure. Generally, a writ of mandamus will not be granted if the matter complained of can be raised on appeal. Ex parte Furnace andCorrosive Services, Inc.,
WRIT DENIED.
BRADLEY and HOLMES, JJ., concur.