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

• Court: Court of Civil Appeals of Alabama
• Decided: March 24, 2023
• Docket: CL-2022-1191
• Status: Published

Opinion

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, 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 _________________________

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.

2 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

3 CL-2022-1148 and CL-2022-1191

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.

4 CL-2022-1148 and CL-2022-1191

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

5 CL-2022-1148 and CL-2022-1191

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

6 CL-2022-1148 and CL-2022-1191

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

7 CL-2022-1148 and CL-2022-1191

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

8 CL-2022-1148 and CL-2022-1191

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

9 CL-2022-1148 and CL-2022-1191

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. 10 CL-2022-1148 and CL-2022-1191

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.

11 CL-2022-1148 and CL-2022-1191

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.