Ex parte N.J. PETITION FOR WRIT OF MANDAMUS: ( 2023 )

REL: January 27, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
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Ex parte N.J.
PETITION FOR WRIT OF MANDAMUS
(In re: N.J.
v.
T.T.)
(Houston Circuit Court, DR-22-364.01)
EDWARDS, Judge.
On November 1, 2022, N.J. mailed to the Houston Circuit Court
("the trial court") a request, pursuant to Ala. Code 1975, § 30-3B-305, to
register a judgment entered by the District Court of Bell County, Texas,
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on October 19, 2022 ("the Texas judgment"), pursuant to which she was
named the "nonparent joint managing conservator" of N.T.C. ("the
child"). The Texas judgment, which indicates that it was entered by
default, also named T.T. as the "parent joint managing conservator" of
the child. Pursuant to the Texas judgment, T.T. was permitted to
"designate the primary residence of the child without regard to
geographic location." N.J. was awarded specified visitation periods with
the child, including one weekend per month, certain holiday visitation,
and extended summer visitation.
Although T.T. filed no response to the request to register the Texas
judgment, the trial court set the matter for a hearing, which was held on
November 17, 2022. As N.J. correctly points out, registration of a sister
state's judgment determining custody is accomplished without a hearing,
unless a person contests the validity of that judgment order within 30
days of receiving the notice provided by the clerk's office upon its receipt
of the request to register the foreign judgment, as set forth in § 30-3B-
305(b), (c)(2), and (e). After the hearing, the trial court entered the
following order on November 22, 2022:
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"The matter before the Court is [N.J.'s] motion to
register [the Texas judgment] concerning child custody
entered October 19, 2022, in the District Court of Bell County,
Texas. A hearing was held in this Court on November 17,
2022. [T.T.] was present as well as [N.J.] Both were pro se.
"Testimony was taken from the parties. [N.J.] is a Texas
resident. [T.T.] is a resident of Houston County, Alabama, as
well as the minor child. A Texas court already ordered that
the child be returned to [T.T.]"
"After a telephone conference with Bell County District
Judge Jack Jones, who issued the [Texas judgment]
judgment, both judges are in agreement that this Court has
jurisdiction. Alabama and Texas law disfavors a default
judgment. Therefore, the [Texas judgment] is set aside. If the
parties wish to pursue this litigation, one or the other must
file a new Complaint in this Court. Otherwise, this case is
hereby dismissed."
N.J. has filed in this court a petition for the writ of mandamus
challenging the November 22, 2022, order entered by the trial court.
Initially, she argues that the trial court had no ability to hold a hearing
on the registration of the Texas judgment when T.T. had not requested a
hearing on the validity of the Texas judgment. We agree. She further
challenges the November 22, 2022, order insofar as it set aside the Texas
judgment and declined to register that judgment. As she correctly points
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out, the trial court had no basis upon which to set aside the Texas
judgment.
" ' "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 A.M.P., 997 So. 2d 1008, 1014 (Ala. 2008) (quoting Ex parte
Perfection Siding, Inc., 882 So. 2d 307, 309-10 (Ala. 2003), quoting in turn
Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995)). " '[M]andamus
is the proper remedy to vacate an order the trial court had no power to
enter.' " Ex parte Lyon Fin. Servs., Inc., 775 So. 2d 181, 183 (Ala. 2000).
Section 30-3B-305 governs the registration of a child-custody
determination that has been made by a sister state. In its entirety, § 30-
3B-305 provides:
"(a) A child custody determination issued by a court of
another state may be registered in this state, with or without
a simultaneous request for enforcement, by sending to the
appropriate court in this state:
"(1) A letter or other document requesting
registration;
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"(2) Two copies, including one certified copy,
of the determination sought to be registered, and
a statement under penalty of perjury that to the
best of the knowledge and belief of the person
seeking registration the order has not been
modified; and
"(3) Except as otherwise provided in [Ala.
Code 1975, §] 30-3B-209, the name and address of
the person seeking registration and any parent or
person acting as a parent who has been awarded
custody or visitation in the child custody
determination sought to be registered.
"(b) On receipt of the documents required by subsection
(a), the registering court shall:
"(1) Cause the determination to be filed as a
foreign judgment, together with one copy of any
accompanying documents and information,
regardless of their form; and
"(2) Serve notice upon the persons named
pursuant to subsection (a)(3) and provide them
with an opportunity to contest the registration in
accordance with this section.
"(c) The notice required by subsection (b)(2) must state
that:
"(1) A registered determination is
enforceable as of the date of the registration in the
same manner as a determination issued by a court
of this state;
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"(2) A hearing to contest the validity of the
registered determination must be requested
within 30 days after service of notice; and
"(3) Failure to contest the registration will
result in confirmation of the child custody
determination and preclude further contest of that
determination with respect to any matter that
could have been asserted.
"(d) A person seeking to contest the validity of a
registered order must request a hearing within 30 days after
service of the notice. At that hearing, the court shall confirm
the registered order unless the person contesting registration
establishes that:
"(1) The issuing court did not have
jurisdiction under Article 2 [of Chapter 3B of Title
30];
"(2) The child custody determination sought
to be registered has been vacated, stayed, or
modified by a court having jurisdiction to do so
under Article 2 [of Chapter 3B of Title 30]; or
"(3) The person contesting registration was
entitled to notice, but notice was not given in
accordance with the standards of [Ala. Code 1975,
§] 30-3B-108, in the proceedings before the court
that issued the order for which registration is
sought.
"(e) If a timely request for a hearing to contest the
validity of the registration is not made, the registration is
confirmed as a matter of law and the person requesting
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registration and all persons served must be notified of the
confirmation.
"(f) Confirmation of a registered order, whether by
operation of law or after notice and hearing, precludes further
contest of the order with respect to any matter that could have
been asserted at the time of registration."
In her petition, N.J. states that she complied with § 30-3B-305 by
mailing a letter requesting registration, three certified copies of the
Texas judgment, "a statement under penalty of perjury that to the best
of [her] knowledge and belief … the [Texas judgment] had not been
modified," her name and address, and the name and address of T.T. N.J.
attached a copy of the letter, a certified copy of the Texas judgment, and
the statement to her mandamus petition. N.J. also attached to her
mandamus petition a copy of the certified mail receipt indicating that the
trial-court clerk had received the package containing the request for
registration of the Texas judgment on November 3, 2022. T.T. does not
controvert N.J.'s assertion that she fully complied with the requirements
of § 30-3B-305, and we therefore conclude that N.J.'s attempt to register
the Texas judgment was completed properly. See Ex parte Turner, 840
So. 2d 132, 134 (Ala. 2002) (quoting Guaranty Funding Corp. v. Bolling,
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288 Ala. 319, 327, 260 So. 2d 589, 596 (1972)) (explaining that the
averments of fact in a petition for the writ of mandamus are taken as true
when "[t]he answer does not contain a denial of any of the facts stated in
the petition for mandamus, nor does it contain averments of other facts
sufficient in law to defeat the petitioner's application").
N.J. asserts, and T.T. does not dispute, that T.T. did not file a
motion in the trial court seeking a hearing on the validity of the Texas
judgment. See Ex parte Turner, 840 So. 2d at 134. Had T.T. requested
a hearing and challenged the validity of the Texas judgment on the
ground that she had not received notice of the Texas proceedings, see §
30-3B-305(d)(3), the trial court could have entertained that argument at
a hearing set for that purpose.1 However, because T.T. never challenged
the validity of the Texas judgment, the trial court acted outside its
authority in holding the November 17, 2022, hearing, in failing to register
1In her answer to the mandamus petition, T.T. indicates that she
was unaware of the Texas custody action. However, N.J. avers in her
mandamus petition that, in September 2021, T.T. successfully sought a
writ of habeas corpus returning the child to her custody pending
resolution of the Texas custody action. In addition, materials from the
Texas court appended to the mandamus petition indicate that T.T. was
served with the petition in the Texas custody action.
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the Texas judgment, and in setting aside the Texas judgment.
Accordingly, we grant N.J.'s petition and direct the trial court to set aside
its November 22, 2022, order and to register the Texas judgment as
required by § 30-3B-305.
PETITION GRANTED; WRIT ISSUED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.
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