Ex parte D.A. and M.A. PETITION FOR WRIT OF MANDAMUS ( 2023 )

Rel: March 24, 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,
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may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________
CL-2022-1148 and CL-2022-1191
_________________________
Ex parte D.A. and M.A.
PETITIONS FOR WRIT OF MANDAMUS
(In re: C.H.
v.
D.A. et al.)
(Jefferson Juvenile Court, Bessemer Division,
JU-18-293.01 and JU-18-293.02)
FRIDY, Judge.
D.A. and M.A. ("the paternal grandparents") filed a petition for a
writ of mandamus directing the Jefferson Juvenile Court to vacate all
orders that that court entered after September 22, 2022, in an action that
CL-2022-1148 and CL-2022-1191
C.H. ("the maternal grandmother") commenced seeking visitation with
S.A., the parties' grandchild ("the grandchild"). In that petition, assigned
appellate case number CL-2022-1191, the paternal grandparents contend
that the Jefferson Juvenile Court lacked jurisdiction to enter orders in
the visitation action after it entered an order purporting to transfer that
action to the Walker Juvenile Court. The paternal grandparents had
previously filed a petition for a writ of mandamus directing the Jefferson
Juvenile Court to dismiss the visitation action; that petition was assigned
appellate case number CL-2022-1148. We consolidated both petitions.
For the reasons discussed herein, we grant in part and deny in part the
petition in appellate case number CL-2022-1191 ("the second mandamus
petition"), and we dismiss the petition in appellate case number CL-2022-
1148 ("the first mandamus petition") as moot.
Background
The materials before this court indicate that on March 9, 2020, the
Jefferson Juvenile Court entered a "private dependency petition order"
in case number JU-18-293.01, placing the grandchild in the custody of
the paternal grandparents and prohibiting contact between the maternal
grandmother and the grandchild.
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CL-2022-1148 and CL-2022-1191
On May 24, 2022, the maternal grandmother filed a complaint in
the Walker Circuit Court seeking visitation with the grandchild pursuant
to Alabama's Grandparent Visitation Act ("the GVA"), § 30-3-4.2, Ala.
Code 1975. On July 5, 2022, the maternal grandmother filed a motion in
the Walker Circuit Court seeking to have the visitation action
transferred to the "circuit civil division" of the Jefferson Circuit Court.
On July 6, 2022, the Walker Circuit Court granted the maternal
grandmother's motion and transferred the visitation action to the
Jefferson Circuit Court.
On September 12, 2022, the Jefferson Circuit Court entered an
order purporting to transfer the visitation action to the "Family Court of
Jefferson County," that is, to the Jefferson Juvenile Court, where it was
assigned case number JU-18-293.02. On September 22, 2022, the
Jefferson Juvenile Court entered an order purporting to transfer the
grandmother's visitation action to the Walker Juvenile Court, stating
that the child lived in Walker County. A handwritten notation on that
order says: "even though the case originated here in the Bessemer Family
Court this case needs to be transferred to the Circuit Civil Division for
the Complaint on grandparent visitation." The September 22, 2022, order
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is stamped "filed" on September 27, 2022, and indicates that Susan
Odom, the Walker Circuit Court clerk, received the record. On October
12, 2022, the Jefferson Juvenile Court filed its acknowledgment that the
Walker Circuit Court had received the visitation action.
On October 19, 2022, the paternal grandparents filed in the
Jefferson Juvenile Court a "motion to reconsider order of transfer of
venue," asserting that the child lived in Jefferson County. On October 20,
2022, the Jefferson Juvenile Court entered an order purporting to grant
the motion to reconsider, noting that "the case shall remain in Jefferson
County" and adding that it would be docketed "soon." That same day, the
Jefferson Juvenile Court appointed a guardian ad litem for the
grandchild.
On October 27, 2022, the paternal grandparents filed in the
Jefferson Juvenile Court a motion to dismiss the maternal grandmother's
visitation action, contending that the GVA does not create a cause of
action pursuant to which the maternal grandmother can seek visitation
from a nonparent custodian of the grandchild. On October 28, 2022, the
Jefferson Juvenile Court entered an order purporting to deny the
paternal grandparents' motion to dismiss.
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On November 4, 2022, the Jefferson Juvenile Court entered an
order, apparently without taking evidence on the issue of grandparent
visitation, purporting to award the maternal grandmother supervised
visitation with the grandchild on the third Sunday of each month after
church, "possibly to have lunch or early dinner." The paternal
grandparents were directed to supervise the visits. The guardian ad litem
was to be present at one of the visits and to report to the Jefferson
Juvenile Court, which would then review the case in February 2023.
On November 9, 2022, the paternal grandparents filed the first
mandamus petition challenging the Jefferson Juvenile Court's refusal to
dismiss the visitation action before the November 2022 order granting
visitation was entered. On January 24, 2023, the paternal grandparents
filed the second mandamus petition, in which they challenge the
Jefferson Juvenile Court's jurisdiction in light of its September 22, 2022,
order purporting to transfer the case to Walker County.
Analysis
Appellate Case No. CL-2022-1191
We defer discussion of the first mandamus petition until the end of
this opinion because, for reasons that will become clear in our analysis of
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the second mandamus petition, we conclude that the first mandamus
petition is moot. In the second mandamus petition, the paternal
grandparents challenge the Jefferson Juvenile Court's jurisdiction to
enter any orders once it transferred the maternal grandmother's
visitation action to the Walker Juvenile Court on September 22, 2022.
We first note that the paternal grandparents did not file the second
mandamus petition until January 24, 2023, some four months after the
Jefferson Juvenile Court's order transferring the action to the Walker
Juvenile Court. Generally, a mandamus petition must "be filed within a
reasonable time." Rule 21(a)(3), Ala. R. App. P. The presumptively
reasonable time for filing a mandamus petition is the same as the time
for taking an appeal, which, in a juvenile action, is within 14 days of the
entry of the challenged order. See Rule 21(a)(3), Ala. R. App. P., and Ex
parte Madison Cnty. Dep't of Hum. Res., 261 So. 3d 381, 384-85 (Ala. Civ.
App. 2017). Clearly, the paternal grandparents did not file the second
mandamus petition within the presumptively reasonable time, and the
petition fails to "include a statement of circumstances constituting good
cause for the appellate court to consider the petition, notwithstanding
that it was filed beyond the presumptively reasonable time" that Rule
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21(a)(3), Ala. R. App. P., requires. However, our supreme court has held
that a petition for a writ of mandamus that challenges the subject-matter
jurisdiction of a trial court need not be filed within the presumptively
reasonable period prescribed by Rule 21. See Ex parte K.R., 210 So. 3d
1106, 1112 (Ala. 2016) (holding that, "even though [the] petition [was]
untimely filed, we will consider [the] argument ... because it concerns the
jurisdiction of the probate court, of which we may take notice ex mero
motu"). Therefore, we will consider the second mandamus petition.
"[M]andamus 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 Edgar, 543 So. 2d 682, 684 (Ala. 1989).
In support of their second mandamus petition, the paternal
grandparents contend that the Jefferson Juvenile Court no longer had
jurisdiction over the visitation action once it entered the September 22,
2022, order transferring the action to the Walker Juvenile Court.
Therefore, they contend, the Jefferson Juvenile Court did not have
jurisdiction to enter the October 20, 2022, order purporting to rescind the
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transfer order or to enter any of its other orders entered after September
22, 2022.
Our supreme court has held that
"[o]nce the transferor court has granted the motion to
transfer the case and the file has been sent to, and docketed
by, the transferee court, the transferor court cannot then
change its mind and vacate or set aside its transfer order or
order the case returned. Ex parte Morrow, 259 Ala. 250, 66
So. 2d 130 (1953). Furthermore, the trial judge of the
transferee court may not consider a motion to retransfer the
case to the county in which it was originally filed. Ex parte
Tidwell Indus., Inc., 480 So. 2d 1201 (Ala. 1985). The
aggrieved party's sole remedy in such a case is a petition for
writ of mandamus directed to the transferor court."
Ex parte MedPartners, Inc., 820 So. 2d 815, 821 (Ala. 2001).
"Where the trial court has improperly ordered a
transfer, mandamus against the transferor court is an
appropriate remedy, notwithstanding the fact that an order
has been entered which moves the case to the transferee
court. The transferee court lacks authority to consider a
motion to retransfer an action to the county in which it was
initially filed. Mandamus to the transferor court is the
appropriate avenue for seeking redress of any error in the
transfer."
2 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated § 82.4,
p. 553 (3d ed. 1996) (citations omitted).
Here, once the Walker Circuit Court, as the transferor court,
entered an order transferring the maternal grandmother's visitation
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action to the Jefferson Circuit Court, the Jefferson Circuit Court did not
have the option of transferring the case back to the Walker Circuit Court.
However, the Jefferson Circuit Court purported to transfer the action to
the Jefferson Juvenile Court, and the Jefferson Juvenile Court attempted
to transfer the action to the Walker Juvenile Court.
Despite the Jefferson Circuit Court's attempt to transfer the action
to the Jefferson Juvenile Court, the latter court did not have and could
not obtain jurisdiction over the maternal grandmother's visitation action.
Generally, grandparent visitation is governed by § 30-3-4.2, Ala. Code
1975, which provides in part that
"[a] grandparent may file an original action in a circuit court
where his or her grandchild resides or any other court
exercising jurisdiction with respect to the grandchild or file a
motion to intervene in any action when any court in this state
has before it any issue concerning custody of the grandchild,
including a domestic relations proceeding involving the
parent or parents of the grandchild, for reasonable visitation
rights with respect to the grandchild."
§ 30-3-4.2(b), Ala. Code 1975.
The documents filed in these mandamus proceedings indicate that
the Jefferson Juvenile Court had closed the original dependency action
and that there was no other case involving the grandchild pending in that
court or any other court. Because no other court, including the Jefferson
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Juvenile Court, was exercising jurisdiction over the grandchild, § 30-3-
4.2(b) required that the maternal grandmother's original visitation
action be filed in and adjudicated by a circuit court. See Ex parte R.D.,
313 So. 3d 1119, 1129 (Ala. Civ. App. 2020). 1 Because the Jefferson
Juvenile Court did not have and could not obtain subject-matter
jurisdiction over the maternal grandmother's visitation action, the
Jefferson Circuit Court was not authorized to enter the order of
September 12, 2022, purporting to transfer that action to the Jefferson
Juvenile Court. See, e.g., C.D.S. v. K.S.S., 963 So. 2d 125, 130 n.5 (Ala.
Civ. App. 2007) (recognizing that a circuit court could not confer
jurisdiction on a juvenile court by purporting to transfer a custody action
to the juvenile court when the circuit court had jurisdiction over custody
matters pursuant to its continuing jurisdiction conferred by the parties'
divorce action). Thus, all orders that the Jefferson Juvenile Court
purported to enter thereafter, including the attempt to transfer the
1Of course, § 12-15-115(10), Ala. Code 1975, provides that a juvenile
court has original jurisdiction over "[p]roceedings to establish
grandparent visitation when filed as part of a juvenile court case
involving the same child." In this case, however, the maternal
grandmother's visitation action was not filed as part of a juvenile court
case but as a separate action.
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action to the Walker Juvenile Court and to allow the maternal
grandmother to exercise visitation with the grandchild, are void for lack
of jurisdiction. See J.N.S. v. A.H., [Ms. 2210273, Oct. 21, 2022] ___ So. 3d
___ (Ala. Civ. App. 2022).
In appellate case no. CL-2022-1191, the paternal grandparents
have demonstrated that they are entitled to a petition to a writ of
mandamus to the extent that the Jefferson Juvenile Court did not have
jurisdiction over the maternal grandmother's visitation petition.
However, they have failed to demonstrate that the Walker Circuit Court
has retained jurisdiction over that action. Thus, we grant in part and
deny in part the petition in appellate case no CL-2022-1191, with
instructions to the Jefferson Juvenile Court to set aside all of its orders
and transfer the action back to the Jefferson Circuit Court. See § 12-11-
11, Ala. Code 1975.
Appellate Case No. CL-2022-1148
The paternal grandparents' first petition for a writ of mandamus
asks this court to direct the Jefferson Juvenile Court to vacate its order
denying their motion to dismiss the maternal grandmother's visitation
action and to direct that court to enter an order dismissing that action.
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As noted above, however, the Jefferson Juvenile Court does not have
jurisdiction over the maternal grandmother's visitation action, and it
therefore had no basis on which to entertain their motion to dismiss.
Thus, the petition in appellate case number CL-2022-1148 is dismissed
as moot, Ex parte Taylor, [Ms. 2200379, Apr. 2, 2021] ___ So. 3d ___ (Ala.
Civ. App. 2021) ("A petition for the writ of mandamus is moot when there
is no real controversy and it seeks to determine an abstract question that
does not rest on existing facts."), and the parents are free to assert their
argument for dismissal in the Jefferson Circuit Court upon transfer of
the maternal grandmother's visitation action back to that court.
CL-2022-1148 -- PETITION DISMISSED AS MOOT.
CL-2022-1191 -- PETITION GRANTED IN PART AND DENIED
IN PART; WRIT ISSUED.
Thompson, P.J, and Moore, Edwards, and Hanson, JJ., concur.
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