Opinion
2190291
03-06-2020
EX PARTE L.B. (In re: C.P. v. L.B.)
Charles N. Reese, Daleville, for petitioner. Shannon A. Rash, Dothan, for respondent.
Charles N. Reese, Daleville, for petitioner.
Shannon A. Rash, Dothan, for respondent.
DONALDSON, Judge. L.B. ("the mother") petitions this court for a writ of mandamus directing the Houston Circuit Court ("the trial court") to vacate its order denying the mother's motion for a change of venue and to enter an order transferring the underlying custody action to the Dale Circuit Court. We deny the petition.
The materials submitted by the parties indicate the following. The mother and C.P. ("the father") are the unmarried parents of Co.P. and Ca.P. ("the children"). On August 28, 2019, the mother filed a petition for protection from abuse against the father in the Dale Circuit Court ("the PFA action"). On the same day, the Dale Circuit Court entered a temporary protective order that included granting the mother temporary custody of the children. On September 9, 2019, the father was served in the PFA action.
On September 8, 2019, the father commenced an action in the trial court against the mother ("the custody action"). In his complaint, the father sought sole physical and legal custody of the children, child support from the mother, payment from the mother for one-half of the children's health-care expenses not covered by insurance, and reimbursement for attorney fees.
On September 13, 2019, the father filed a motion in the Dale Circuit Court to consolidate the custody action and the PFA action or, in the alternative, a continuance of the PFA action.
On September 20, 2019, the mother filed in the trial court a motion to change the venue of the custody action. In that motion, the mother argued that, pursuant to § 6-3-2, Ala. Code 1975, venue was not proper in Houston County but was proper in Dale County because she and the children are residents of Dale County.
On December 10, 2019, the trial court conducted a hearing on the mother's motion to change venue. At the hearing, the mother testified that she had moved to Houston County in 2013 with the father and the children and that they had lived together in an apartment in Houston County until sometime in August 2019. According to the mother, at that time, she and the children went to her mother's house in Dale County to protect herself and the children from abuse by the father. The mother testified that the events that had caused her to go to Dale County occurred in Houston County. The mother testified that she initiated the PFA action a few days after relocating to Dale County.
According to the mother, she has moved permanently to Dale County and, at the time of the hearing on her motion for a change of venue, was living in her mother's home there. The mother testified that she is employed in Dale County and that she did not intend to return to Houston County. The mother testified that before going to Dale County she and the father had entered a lease agreement for the apartment in Houston County in which they lived and that, sometime in September 2019 after she had been served in the custody action, she took her name off of the lease agreement, as well as the utility accounts for that apartment. The mother testified that her residency in her mother's house was a temporary and not a permanent arrangement.
At the hearing, the mother's counsel argued that venue was proper in Dale County and that the trial court should transfer the custody action to the Dale Circuit Court. The father's counsel argued that the statutory law regarding venue for the PFA action was broader than the statutory law regarding venue for the custody action and that venue in Houston County was proper because the mother was still a resident there at the time the custody action was initiated. The mother's counsel clarified that the motion before the court did not include any issue regarding forum non conveniens.
On December 17, 2019, the trial court entered an order in the custody action denying the mother's motion for a change of venue. On December 27, 2019, the mother filed a motion to vacate that order. On December 30, 2019, the trial court entered an order denying the mother's motion to vacate.
On January 2, 2020, the Dale Circuit Court entered an order transferring the PFA action to the trial court to be heard with the custody action.
On January 6, 2020, the mother filed her petition for a writ of mandamus directed to the December 17, 2019, order denying her motion for a change of venue. This court has jurisdiction to review the mother's mandamus petition pursuant to § 12–3–10 and § 12–3–11, Ala. Code 1975.
" ‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ Ex parte Alabama Great Southern R.R., 788 So. 2d 886, 888 (Ala. 2000). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). Moreover, our review is limited to those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala. 1998)."
Ex parte Pike Fabrication, Inc., 859 So. 2d 1089, 1091 (Ala. 2002). "This Court reviews mandamus petitions seeking review of a venue determination by asking whether the trial court exceeded its discretion in granting or denying the motion for a change of venue." Ex parte Perfection Siding, Inc., 882 So. 2d 307, 310 (Ala. 2003). Regarding such a motion that does not involve an issue of forum nonconveniens, a change of venue "is appropriate only if the venue in which [the plaintiff] originally filed its action was improper." Ex parte Sierra Dev., Inc., 652 So. 2d 251, 253 (Ala. 1994). When the trial court's order is based on oral testimony, we apply the ore tenus standard of review to disputed issues of fact. See, e.g., Surginer v. Roberts, 231 So. 3d 1117, 1127–28 (Ala. Civ. App. 2017). A trial court's order ruling on a motion for a change of venue is presumed correct and will not be overturned unless it is plainly and palpably erroneous. Id.
In support of her petition, the mother first argues that Dale County was a proper venue for the PFA action. Section 30-5-3(c), Ala. Code 1975, a part of the Protection from Abuse Act, § 30-5-1 et seq., Ala. Code 1975, provides:
"A petition for a protection order may be filed in any of the following locations:
"(1) Where the plaintiff or defendant resides.
"(2) Where the plaintiff is temporarily located if he or she has left his or her residence to avoid further abuse.
"(3) Where the abuse occurred.
"(4) Where a civil matter is pending before the court in which the plaintiff and the defendant are opposing parties."
The father agrees that the mother properly commenced the PFA action in Dale County. The mother appears to also assert that § 30-5-3(c) is the controlling legal authority for venue in the custody action commenced by the father in Houston County. However, the father's complaint in the trial court in the custody action does not appear to seek relief under the Protection from Abuse Act, and the mother does not establish how § 30-5-3(c) applies to or controls venue of the custody action.
The mother also asserts, and we agree, that § 30-2-4, Ala. Code 1975, and § 30-3-5, Ala. Code 1975, do not apply to the determination of venue in the custody action because the parties are not married or seeking a divorce and there is no prior final judgment adjudicating custody of the children.
Section 30-2-4 provides:
"Complaints for divorce may be filed in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when the separation occurred, or if the defendant is a nonresident, then in the circuit court of the county in which the other party to the marriage resides."
Section 30-3-5 provides:
"Notwithstanding any law to the contrary, venue of all proceedings for petitions or other actions seeking modification, interpretation, or enforcement of a final decree awarding custody of a child or children to a parent and/or granting visitation rights, and/or awarding child support, and/or awarding other expenses incident to the support of a minor child or children, and/or granting post-minority benefits for a child or children is changed so that venue will lie in: (1) the original circuit court rendering the final decree; or (2) in the circuit court of the county where both the current custodial parent or, in the case of post-minority benefits, where the most recent custodial parent, that parent having custody at the time of the child's attaining majority, and the child or children have resided for a period of at least three consecutive years immediately preceding the filing of the petition or other action. The current or most recent custodial parent shall be able to choose the particular venue as herein provided, regardless of which party files the petition or other action."
The mother and the father agree that, assuming § 30-5-3(c) is inapplicable, § 6-3-2, Ala. Code 1975, regarding venue of actions against individuals is applicable to the custody action. The father's action seeking custody of the children is equitable in nature. See, e.g., R.D.F. v. R.J.F., 271 So. 3d 831, 834 (Ala. Civ. App. 2018) (" ‘The circuit court's jurisdiction to [decide custody] is derived from the principles of equity ....’ " (quoting Ex parte Lipscomb, 660 So. 2d 986, 989 (Ala. 1994) )). Accordingly, the following provision of § 6-3-2 applies to the custody action:
"(b) In proceedings of an equitable nature against individuals:
"....
"(3) Except as may be otherwise provided, actions must be commenced in the county in which the defendant or a material defendant resides."
Section 6-3-2(a), Ala. Code 1975, applies to proceedings of a "legal nature." We note that Rule 82(b), Ala. R. Civ. App., which resolves inconsistencies between § 6-3-2(a) and § 6-3-2(b), applies "only in the event of an inconsistency in the statutory provisions ...." Ex parte Lashley, 596 So. 2d 890, 891 (Ala. 1992) ; see Rule 82(b) ("Venue of actions shall not be affected by these rules except as the statute for venue for actions against individuals at law (§ 6-3-2(a) ) and the statute for venue for actions against individuals in equity (§ 6-3-2(b) ) are inconsistent.").
The mother and the father disagree over whether the mother was a resident of Houston County.
"Generally, the terms ‘residence’ and ‘domicile’ are not considered synonymous. Annot., Venue—Residence and Domicile, 12 A.L.R.2d 759 (1950). However, when determining venue, most jurisdictions,
including Alabama, do consider the terms synonymous. Ex parte Weissinger, 247 Ala. 113, 22 So. 2d 510 (1945). The terms denote the place where the person is deemed in law to live and may not always be the place where the person is actually dwelling. Weissinger."
Ex parte Sides, 594 So. 2d 93, 95 (Ala. 1992).
"A person's domicile is that place in which his habitation is fixed, without any present intention of removing, and it embraces (1) the fact of residence and (2) the intention to remain. As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact. Lucky v. Roberts, 211 Ala. 578, 580, 100 So. 878, 879 [ (1924) ], and cases cited."
Ex parte Weissinger, 247 Ala. 113, 117, 22 So. 2d 510, 514 (1945).
" ‘One who asserts a change of domicile has the burden of establishing it.... And "where facts are conflicting, the presumption is strongly in favor of an original, or former, domicile, as against an acquired one." ’ " Ex parte Coley, 942 So. 2d 349, 353 (Ala. 2006) (quoting Weissinger, 247 Ala. at 117, 22 So. 2d at 514, quoting in turn 28 C.J.S. Domicile § 16 ). According to the mother's testimony, when the father initiated the custody action, the mother had been in Dale County for approximately a couple of weeks, and the mother's name was still on the lease for the parties' apartment in Houston County and the utility accounts for that apartment. The mother testified that her living arrangement in her mother's house in Dale County was temporary. We conclude that the determination that the mother's residency was in Houston County at the time the father initiated the custody action was within the trial court's discretion in light of the conflicting evidence. See Ex parte Coley, supra ; Surginer v. Roberts, 231 So. 3d at 1128 (" ‘Under the contradictory testimony, it was within the special province of the trial court to determine both the weight and the credibility to be accorded to the testimony of each witness.’ Wiggins v. Brown, 391 So. 2d 128, 129 (Ala. Civ. App. 1980)."). Therefore, from the materials before us, the mother has not established that Houston County was an improper venue for the custody action.
The mother further argues that, "[e]ven were venue proper in Houston County[,] ... the court that later exercises jurisdiction is obligated to transfer the case involving child custody to Dale County, the court first exercising jurisdiction." In support of her argument, the mother cites Wesson v. Wesson, 628 So. 2d 953, 953 (Ala. Civ. App. 1993), in which this court stated: "Once jurisdiction has attached in one court, that court has the exclusive right to continue its exercise of power until the completion of the case, and is only subject to appellate authority." See also Walden v. ES Capital, LLC, 89 So. 3d 90, 105–06 (Ala. 2011) (" ‘It is well settled that, when two circuit courts have equal and concurrent jurisdiction, the court which first exercised its jurisdiction in a matter has preference.’ " (quoting Swigert v. Swigert, 553 So. 2d 607, 608 (Ala. Civ. App. 1989) )). The mother asserts that the Dale Circuit Court first exercised jurisdiction over custody of the children as a part of the PFA action and that, because the trial court exercised jurisdiction over custody of the children afterward, the trial court should have transferred the custody action to the Dale Circuit Court. The materials submitted, however, indicate that the Dale Circuit Court entered an order transferring the PFA action to the trial court on January 2, 2020. Even if the Dale Circuit Court had "the exclusive right to continue its exercise of power until the completion of the case," Wesson, 628 So. 2d at 953, the Dale Circuit Court declined to exercise that power and transferred the PFA action to the trial court. Therefore, the trial court was not compelled to transfer the custody action to the Dale Circuit Court.
We note that venue and jurisdiction are distinct concepts.
"Venue is defined as:
" ‘1. The proper or a possible place for the trial of a lawsuit, usu. because the place has some connection with the events that have given rise to the lawsuit. 2. The county or other territory over which a trial court has jurisdiction. Cf. JURISDICTION. 3. Loosely, the place where a conference or meeting is being held. 4. In a pleading, the statement establishing the place for trial. 5. In an affidavit, the designation of the place where it was made.’
"Black's Law Dictionary 1553 (7th ed. 1999).
"Venue has been distinguished from jurisdiction.
" ‘Venue must be carefully distinguished from jurisdiction. Jurisdiction deals with the power of a court to hear and dispose of a given case; in the federal system, it involves questions of a constitutional dimension concerning the basic division of judicial power among the states and between state and federal courts. Venue is of a distinctly lower level of importance; it is simply a statutory device designed to facilitate and balance the objectives of optimum convenience for parties and witnesses and efficient allocation of judicial resources.’
"Jack H. Friedenthal et al., Civil Procedure § 2.1 (3d ed. 1999) (footnote omitted)."
Ex parte City of Haleyville, 827 So. 2d 778, 781 (Ala. 2002).
We note that § 30-5-3(d) provides:
"When custody, visitation, or support, or a combination of them, of a child or children has been established in a previous court order in this state, or an action containing any of the issues above is pending in a court in this state in which the plaintiff and the defendant are opposing parties, a copy of any temporary ex parte protection order issued pursuant to this chapter [i.e., the Protection from Abuse Act] and the case giving rise thereto should be transferred to the court of original venue of custody, visitation, or support for further disposition as soon as practical taking into account the safety of the plaintiff and any children."
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For the reasons stated, we deny the mother's motion for a writ of mandamus.
PETITION DENIED.
Thompson, P.J., and Edwards and Hanson, JJ., concur.
Moore, J., concurs in the result, without writing.