Chafin v. Chafin

101 So. 3d 234, 2012 Ala. Civ. App. LEXIS 192, 2012 WL 3055522
CourtCourt of Civil Appeals of Alabama
DecidedJuly 27, 2012
Docket2110421
StatusPublished
Cited by2 cases

This text of 101 So. 3d 234 (Chafin v. Chafin) 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
Chafin v. Chafin, 101 So. 3d 234, 2012 Ala. Civ. App. LEXIS 192, 2012 WL 3055522 (Ala. Ct. App. 2012).

Opinion

THOMPSON, Presiding Judge.

Jeffrey L. Chafin (“the husband”) appeals from the judgment dismissing his complaint seeking a divorce from Lynne Hales Chafin (“the wife”). In its judgment, the trial court stated that, having considered the pleadings, it determined that it did not have jurisdiction over the parties’ divorce action or over the custody of the parties’ minor child.

The record indicates the following. The parties were married in Scotland in March 2006. The wife is a citizen of the United Kingdom. One child was born during the marriage; the child holds dual citizenship in the United States and the United Kingdom. In May 2010, the husband filed a complaint for a divorce in the Madison Circuit Court (“the trial court”), in which he alleged that he was a resident of Alabama. He also sought “emergency temporary relief’ to prohibit the wife from leaving the country. The trial court entered an order permitting the husband to retain the wife’s passport, and both parties were enjoined from leaving the United States with the child. The wife initially was not represented by counsel, and the litigation in the divorce action proceeded.

While the divorce action was pending, the wife retained an attorney. She initiated an action in the United States District Court for the Northern District of Alabama (“the federal-court action”) seeking to return to Scotland with the child. The petition initiating the federal-court action was filed pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction. On May 5, 2011, the wife filed a motion to stay the “custody proceedings” in the state court, and on May 10, 2011, the trial court entered a stay of the divorce action pending a resolution of the federal-court action.

On June 7, 2011, the husband filed a motion seeking the dismissal of the divorce action pursuant to Rule 41(a), Ala. R. Civ. P. In the motion, the husband stated that the wife had never filed an answer or any other responsive pleading. On June 8, the trial court entered a judgment dismissing the divorce action.

The same day that the husband filed his motion seeking the dismissal of the divorce action, he filed a second divorce action. On June 30, 2011, the trial court entered an order staying the second divorce action pending a final ruling in the federal-court action. Nonetheless, on October 11, 2011, the husband filed a motion requesting a special process server. In his brief, the husband states that the “clerk of the court approved the motion” for the special process server, and the wife was served with the complaint in the second divorce action. However, the record indicates that on October 21, 2011, the trial court denied the motion, noting that it had stayed the second divorce action by its order of June 30, 2011. The trial court also ordered the husband to provide it with a copy of the final ruling, if any, in the federal-court action within seven days.

A judgment had been entered in the federal-court action on October 13, 2011, and the husband provided the trial court with a copy of that judgment on October 28, 2011. A copy of the federal-court judg-[236]*236merit is included in the record on appeal. In the judgment, the federal district court found that evidence before it indicated that the wife and child had traveled to the United States in February 2010, but would have returned to Scotland, where they lived, in May 2010 if the husband had not filed the first divorce action and received an order that prohibited the wife from removing the child from the United States. In fact, the federal court noted, the wife traveled to the United States on a 90-day visitor’s visa, and she had enrolled the child in the Scottish education system, which was scheduled to begin in April 2010. However, the federal court found, before the wife and child could return to Scotland, the husband had filed an emergency custody petition and took the child’s passport. The federal court held that the child had been wrongfully detained in the United States as of May 15, 2010, when the husband denied the wife access to the child’s passport. The federal court found that the wife and child were residents of Scotland and granted the wife’s petition to return to Scotland with the child, where appropriate custody proceedings could begin.

On November 14, 2011, the wife filed a motion seeking the dismissal of the second divorce action, arguing, among other things, that, because the wife and the child were not residents of Alabama, the trial court did not have jurisdiction over them. The trial court agreed with the wife, and on November 21, 2011, it entered a judgment dismissing the second divorce action. In the judgment, the trial court expressly found that it did not have jurisdiction over the parties’ divorce action or over the custody of the child. On December 16, 2011, the husband filed a postjudgment motion and requested oral argument. The trial court denied the husband’s motion without allowing oral argument. The husband timely appealed.

The husband contends that the trial court erred in dismissing the divorce action on the ground that it lacked jurisdiction over the divorce action or over the custody of the parties’ minor child. In support of his contention, the husband cites § 30-2-5, Ala.Code 1975, which provides:

“When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint, which must be alleged in the complaint and proved.”

For a trial court to gain jurisdiction over the marital res, the complaining party must have been a resident of Alabama for six months before filing a complaint for a divorce. Livingston v. Livingston, 835 So.2d 1021, 1023 (Ala.Civ.App.2002). This court has discussed the role of in person-am jurisdiction in the context of a divorce action, explaining:

“We first note that Alabama statutes do not require that a court have in per-sonam jurisdiction over both parties to grant a divorce. The wife alleged and proved her residence in the State of Alabama pursuant to § 30-2-5, Ala. Code 1975. This was sufficient to allow jurisdiction over the wife and the marital res. Lightell v. Lightell, 394 So.2d 41, 42 (Ala.Civ.App.1981). However, a potential judgment awarding custody and child support necessarily fixes upon a [parent] a personal obligation for the care and support of the minor children and requires in personam jurisdiction over the [parent]. May v. Anderson, 345 U.S. 528, 534, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), and Lightell, 394 So.2d at 42-43.”

Coleman v. Coleman, 864 So.2d 371, 374 (Ala.Civ.App.2003).

[237]*237In Fuller v. Fuller, 51 So.3d 1053 (Ala.Civ.App.2010), this court determined that the trial court had jurisdiction to divorce the parties when, at the time the divorce complaint was filed, the father, who had filed the complaint, was a resident of Alabama and the mother was a resident of Mississippi. In reaching our conclusion, this court explained:

“The plaintiff in this case, the father, alleged in his complaint for a divorce that he had been a bona fide resident of this state for more than six months before he filed his complaint. Neither of the parties raised any issue in the trial court or on appeal questioning the residency of the father.

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Cite This Page — Counsel Stack

Bluebook (online)
101 So. 3d 234, 2012 Ala. Civ. App. LEXIS 192, 2012 WL 3055522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chafin-v-chafin-alacivapp-2012.