Blackburn v. Blackburn

180 So. 3d 16, 2015 Ala. Civ. App. LEXIS 80, 2015 WL 1608431
CourtCourt of Civil Appeals of Alabama
DecidedApril 10, 2015
Docket2131043
StatusPublished

This text of 180 So. 3d 16 (Blackburn v. Blackburn) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blackburn v. Blackburn, 180 So. 3d 16, 2015 Ala. Civ. App. LEXIS 80, 2015 WL 1608431 (Ala. Ct. App. 2015).

Opinion

THOMAS, Judge.

Karen Lincecum Blackburn (“the wife”) and David Blackburn (“the husband”) were married on November 6, 2004, in Louisiana. The parties later moved to Mobile; it is undisputed that the parties were residents of Alabama when this action commenced. On January 11, 2013, the husband filed a complaint seeking a divorce in the Mobile Circuit Court (“the trial court”), alleging as grounds incompatibility of temperament and an irretrievable breakdown of the marriage. On January 16, 2013, the wife filed an answer to the complaint and a counterclaim seeking a divorce in which she alleged incompatibility of temperament and that the husband had committed acts of domestic violence.

The parties subsequently filed several motions dealing with, among other things, discovery and pendente lite support. On July 11, 2013, the wife filed a “motion to enforce the covenant marriage contract,” in which she asserted that the parties had been married subject to the Louisiana Covenant Marriage Act (“the Act”), codified at La.Rev.Stat. Ann:, § 9:272 et seq., and that the provisions of the Act governed the divorce action between the parties. After a hearing, the trial court entered an order on September 6, 2013, denying the wife’s motion to enforce the parties’ covenant-marriage contract.

A trial began on Wednesday, April 16, 2014, at which the wife appeared pro se and the trial court heard evidence ore tenus. The trial was scheduled to continue on the next day; however, the wife requested a continuance due to a flooding emergency at the marital home; the trial court granted a continuance to Monday, April 21,2014. On that day, the trial court stated on the record that wife was not present at the trial, that she had requested a second continuance that morning, and that her second request for a continuance had been denied;1 the husband rested his case. The trial court entered a judgment on April 22, 2014, divorcing the parties and dividing the marital property.2 The wife filed a motion to alter, amend, or vacate or, in the alternative, for a new trial on May 22, 2014. After a hearing, the trial court denied the wife’s postjudgment motion on August 8, 2014.

The wife timely appealed to this court on September 19,2014. The first issue the wife raises in her pro se brief on appeal is whether the trial court erred by failing to enforce the Act. The Act, enacted in 1997, provides, in part:

“A. A covenant marriage is a marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship .... •
[18]*18“B. A man and woman may contract a covenant marriage by declaring their intent to do so on their application for a marriage license, as provided in [La. Rev.Stat. Ann.,] 9:224(C), and executing a declaration of intent to contract a coy-enant marriage, as provided in [La.Rev. Stat. Ann.,] 9:273., The application for a marriage license and the declaration of intent shall be filed with the official who issues the marriage license
“C. A covenant marriage terminates only for one of the causes enumerated in [Louisiana] Civil Code Article 101.[ 3J A covenant marriage may be terminated by divorce only upon one of the exclusive grounds enumerated in [La.Rev. Stat. Ann.,] 9:307. A covenant marriage agreement may not be dissolved, rescinded, or otherwise terminated by the mutual consent of the spouses.”

La.Rev.Stat. Ann., § 9:272. Section 9:307.A, La.Rev.Stat. Ann., provides the fault-based grounds for which .a spouse to a covenant marriage may seek a divorce “subsequent to the parties obtaining counseling.” It is undisputed that the' parties in the present case entered into a covenant marriage when they married in Louisiana.

Our research reveals that neither the appellate courts of this state, nor of any other state, have addressed the issue whether a state that does not have laws specifically providing’ for covenant marriages, such as Alabama, must apply the covenant-marriage law of another state during divorce proceedings initiated by parties who are now domiciled in the non-covenant-marriage state. Faced with this issue of first impression, we must consider the feasible options for its resolution. ■ See Peter Hay, The American “Covenant Marriage” in the Conflict of Laws, 64 La. L.Rev. 43 (2003). One option is to determine that our courts do not have subject-matter jurisdiction to grant a divorce to parties who entered into a covenant marriage. However, unlike in Rosengarten v. Downes, 71 Conn.App. 372, 802 A.2d 170 (2002)(concluding that because Connecticut did not recognize same-sex civil unions, the Connecticut court did not have jurisdiction pursuant to Connecticut divorce law to dissolve a civil union performed in another state), the matter presently before us undoubtedly concerns a marriage, as recognized by this state, albeit with statutory limitations regarding the dissolution of that marriage. See Hay, supra, at 51 (“It is most unlikely that th[e] reasoning [of Rosengarten] would extend to covenant marriages. They are intended as marriages ... by the state of their creation.”). We,'therefore, conclude that a court of this state is not precluded from exercising jurisdiction of a divorce action between parties who initially entered into a covenant marriage in a different state.

Having determined that'the trial ■court had jurisdiction to grant the parties a divorce,'the next question is whether a court of this state is required to apply the Act' to parties who participated in a covenant marriage in Louisiana but who subsequently relocated their domicile to Alabama. Although there is no caselaw on point, as a matter of law,

“[u]nder our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicil. Bell v. Bell, 181 U.S. 175 [ (1901) ]; Andrews v. Andrews, 188 U.S. 14 [ (1903) ]. [19]*19The framers of the Constitution were familiar with this jurisdictional .prerequisite, and since 1789 neither this Court nor any other court in the English-speaking world has questioned it. Dom-icil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicil of one spouse with'in a State gives power to that State, we have held, to dissolve a marriage wheresoever contracted.”

Williams v. North Carolina, 325 U.S. 226, 229-30, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945). We also find in the Restatement (Second) of Conflict of Laws § 285 (1971), that “[t]he local law of the domiciliary state in which the action is brought will be applied to determine the right to divorce.” We further note that our supreme court has stated that “[t]he State is a silent party to divorce actions, public policy is involved and the integrity of the court’s decrees are involved.” Winston v. Winston, 279 Ala. 534, 538, 188 So.2d 264, 267 (1966) (citing Winston v, Winston, 276 Ala. 303, 161 So.2d 588 (1964); and Hartigan v. Hartigan, 272 Ala) 67, 128 So.2d 725 (1961)).

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Related

Bell v. Bell
181 U.S. 175 (Supreme Court, 1901)
Andrews v. Andrews
188 U.S. 14 (Supreme Court, 1903)
Williams v. North Carolina
325 U.S. 226 (Supreme Court, 1945)
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539 So. 2d 284 (Court of Civil Appeals of Alabama, 1988)
Winston v. Winston
161 So. 2d 588 (Supreme Court of Alabama, 1964)
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559 S.W.2d 933 (Tennessee Supreme Court, 1977)
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Tucker v. Cullman-Jefferson Counties Gas Dist.
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Cooley v. Cooley
284 So. 2d 729 (Court of Civil Appeals of Alabama, 1973)
Hartigan v. Hartigan
128 So. 2d 725 (Supreme Court of Alabama, 1961)
Winston v. Winston
188 So. 2d 264 (Supreme Court of Alabama, 1966)
Rosengarten v. Downes
802 A.2d 170 (Connecticut Appellate Court, 2002)

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Bluebook (online)
180 So. 3d 16, 2015 Ala. Civ. App. LEXIS 80, 2015 WL 1608431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackburn-v-blackburn-alacivapp-2015.