Dean v. Dean

447 So. 2d 728, 1982 Ala. Civ. App. LEXIS 1386
Court of Civil Appeals of Alabama·Decided November 24, 1982·No. Civ. 3290·Published·Cited by 3 cases

Opinion

WRIGHT, Presiding Judge.

This is a child custody case requiring application of the Parental Kidnapping Prevention Act of 1980 (28 U.S.C.A. § 1738A (West Supp.1982)) and the Uniform Child Custody Jurisdiction Act as enacted in Florida and Alabama (Fla.Stat.Ann. §§ 61.-1302-.1348 (West Supp.1982); §§ 30-3-20 to -44, Code of Alabama 1975 (Supp.1982)).

The wife, Kathy Dean, had resided in Alabama all of her life when she met her husband, Marvin Dean, on a visit in Florida. Marvin Dean had resided in Florida all of his life. The two were married in Grove-land, Florida, on or about January 13, 1979. During the brief marriage, the parties were apparently separated more than they were together.

About March of 1979, Kathy left her husband Marvin and returned to her mother’s residence in Alabama. She remained in Alabama about four or five weeks and returned to her husband in Florida. In May of 1979 she again went to Alabama for about six weeks, and then returned to Florida. Sometime in June or July of 1979 she returned to Alabama. On December 24, 1979, Michael Len Dean, the only child of the marriage, was born in Alabama.

Kathy returned to Florida to live with her husband on February 2, 1980. Kathy and Michael Len remained with Marvin for some five and one-half months. On July 15, 1980, Kathy returned to Alabama with Michael Len and remained.

In August 1980 Marvin petitioned the Circuit Court of Lake County, Florida, for divorce and temporary and permanent custody of the child. Filed with his petition were the required declaration under the Uniform Child Custody Jurisdiction Act and a financial affidavit. Copies of the filing were personally served on Kathy on August 14, 1980, by the sheriff of Marshall County, Alabama. Notice of the hearing on the petition for temporary custody of the child, to be held September 19, 1980, was also personally served on Kathy on August 25, 1980, by the Marshall County Sheriff’s Department.

On September 2, 1980, Kathy’s attorney filed a motion to dismiss the petition or to decline jurisdiction of the custody determi[731]*731nation. On September 9, 1980, the attorney withdrew the motion. Temporary custody of Michael Len Dean was awarded to Marvin on November 24, 1980, by the Lake County Circuit Court. Kathy did not appear at that hearing.

On April 28, 1981, Marvin’s attorney sent Kathy notification of the final hearing to be held May 13, 1981, by certified mail. The letter was returned as undeliverable. Kathy did not appear at the hearing. On May 27, 1981, the Lake County Circuit Court entered judgment granting the divorce and awarding permanent custody of the child to Marvin.

On October 9, 1981, Marvin petitioned the Circuit Court of Marshall County, Alabama, for custody of Michael Len by enforcement of the Florida decree. Kathy answered, alleging that the Florida court’s judgment was void for failure of notice and void with respect to the granting of permanent custody under the Uniform Child Custody Jurisdiction Act (hereinafter UCCJA) because Florida was not the home state of the child. Kathy cross-petitioned for modification of the decree to grant permanent custody of the child to her. After hearing the court held Florida to be the child’s home state and directed that the Florida judgment be given full faith and credit under the Parental Kidnapping Prevention Act of 1980 (hereinafter PKPA).

Thereafter Kathy moved for a new trial, contending that Florida was not the child’s home state. The motion was overruled. Kathy filed a second motion for a new trial and submitted her affidavit stating that when she had returned to Alabama in May or June of 1979, she had done so intending to permanently reside in Alabama. The court denied the motion, but found that it had erroneously determined that Florida was the child’s home state. However, it held that even without the element of home state, the Florida court had jurisdiction to enter its judgment of custody under the PKPA. Kathy appealed and retained custody of Michael Len.

Kathy first questions the Florida court’s jurisdiction contending that under May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) and Calhoun v. Calhoun, 46 Ala.App. 381, 243 So.2d 37 (1970), in personam jurisdiction is necessary for a valid determination of child custody. She relies on Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), contending the Florida judgment invalid because she was neither served with process within Florida’s state limits nor appeared voluntarily. Full faith and credit is not due a judgment of child custody if the court did not have in personam jurisdiction of the mother. May v. Anderson, supra.

The jurisdiction of the courts of Alabama, and of Florida, in child custody matters is governed by the UCCJA and the PKPA. Prior decisions of the courts of this state imposing jurisdictional requirements inconsistent with the provisions of those acts are overruled.

One of the stated purposes of the UCCJA is to:

“(3) Assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state”;

§ 30-3-21, Code 1975. Certainly the maximum-contacts approach of the UCCJA is consistent with modern due process requirements. It is not necessary under the UCCJA that a parent be served with process or notice of a pending action while within the state’s boundaries. Service of proper notice outside the acting state’s boundaries does not offend current due process standards. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Before a valid custody decree can be issued under the UCCJA, reasonable notice and opportunity to be heard must be given each contestant. § 30-3^24, Code [732]*7321975; Fla.Stat.Ann. § 61.131. The PKPA contains a similar requirement. 28 U.S. C.A. § 1738A(e). It is undisputed that Kathy received personal service of the divorce' complaint and of the notice of the hearing on temporary custody. Kathy did not answer the complaint nor appear at the hearing. Under Florida law, a default judgment could have been entered against her, though it appears not to have been done. See 31 Fla.Stat.Ann. § 1.500. After the original service, where there has been no answer or appearance, no further service is necessary unless new or additional claims are asserted. Id. See also 30 Fla.Stat. Ann. § 1.080. The original complaint notified Kathy that Marvin was seeking temporary and permanent custody of the child; no new claims were asserted thereafter by Marvin.

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Dean v. Dean, 447 So. 2d 728, 1982 Ala. Civ. App. LEXIS 1386 (Ala. Ct. App. 1982).

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