Hein v. Fuller

93 So. 3d 961, 2012 WL 1237758, 2012 Ala. Civ. App. LEXIS 93
CourtCourt of Civil Appeals of Alabama
DecidedApril 13, 2012
Docket2101011
StatusPublished
Cited by7 cases

This text of 93 So. 3d 961 (Hein v. Fuller) 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
Hein v. Fuller, 93 So. 3d 961, 2012 WL 1237758, 2012 Ala. Civ. App. LEXIS 93 (Ala. Ct. App. 2012).

Opinions

THOMAS, Judge.

Stacey Mallette Hein (“the mother”) and Abel Fuller (“the father”) married in 1999. They separated in November 2004, while the mother was pregnant with twins, and she moved to Ontario, Canada. The par[963]*963ties’ children were born in Canada in March 2005.

In August 2005, the father sought a divorce from the mother in Alabama; in his divorce complaint, the father requested that the Madison Circuit Court (“the trial court”) determine the paternity of the children because he suspected that he was not the father of the children. The father also requested that, if his paternity was established, the trial court determine child-custody and child-support issues. The mother appeared specially in the Alabama divorce action; although the mother conceded that the trial court could divorce her and the father, she asserted that the trial court could not enter a judgment addressing child custody or child support because it lacked jurisdiction to do so. The trial court agreed and entered a judgment that divorced the parties and incorporated a settlement agreement addressing property issues; the judgment did not address paternity, child custody, or child support. Meanwhile, the mother sought and received a judgment in Canada in which the father was ordered to pay child support. The Canadian judgment awarded the mother custody of the parties’ children but awarded the father no visitation. The father had moved to dismiss the Canadian action because, he had argued, the Canadian court lacked jurisdiction over him; he was unsuccessful.

The mother attempted on two occasions to register the Canadian judgment in Alabama. Neither attempt resulted in a registration of the Canadian judgment. In 2007, an Alabama court declared that the Canadian judgment was void, presumably on the ground that the father was not properly served with the complaint that initiated that action. The mother did not appeal from that judgment.

In July 2009, the mother filed in the trial court what she styled as a petition for modification, seeking modification of the 2005 Alabama divorce judgment. She requested that the trial court modify the Alabama divorce judgment to address the child-custody and child-support issues that it had not resolved; she also specifically sought retroactive child support, an order directing the father to name the children as beneficiaries of a life-insurance policy on his life, an award compensating her for her travel expenses, and an attorney fee. The mother did not attempt to register the Canadian judgment a third time or seek a modification of its child-custody or child-support provisions, having twice failed in that endeavor and having received a determination that the Canadian custody and child-support judgment was void and unenforceable. As a result, we conclude that she was seeking an initial custody determination and an initial child-support order regarding the children as a modification to the 2005 Alabama divorce judgment.

The father answered the mother’s petition and filed a counterclaim in which he sought visitation with the children. In his answer, the father raised questions regarding the trial court’s jurisdiction over the proceeding. In response, the mother amended her modification petition to state that no court of any other state would have jurisdiction over the child-custody and child-support issues and that the mother expressly “consents to the jurisdiction of [the trial court] with respect to the child custody and support issues.”

After a trial in January 2011, the trial court entered a judgment on March 1, 2011, modifying the 2005 divorce judgment. In that judgment, the trial court determined that it had subject-matter jurisdiction over the child-custody and child-support issues, awarded the parties joint legal custody of the children, awarded the mother sole physical custody of the children, awarded the father specified visita[964]*964tion periods, and ordered the father to pay $1,254.47 per month in child support. According to the judgment, the father’s child-support obligation was made retroactive to April 23, 2009, the date of paternity-test results confirming the father’s paternity of the children. The trial court calculated the father’s child-support arrearage to be $26,343.87 and awarded the mother that amount. The trial court required the mother to maintain health insurance on the children and ordered that the parties would each be responsible for one-half of any noncovered medical expenses incurred on behalf of the children. Because the trial court also made the father’s responsibility for noncovered medical expenses retroactive to April 23, 2009, the trial court awarded the mother $226.30 for medical expenses incurred on behalf of the children between that date and the date of the judgment. The trial court denied all other relief requested by the parties.

The father sought postjudgment review of the trial court’s March 1, 2011, judgment. The father requested that he be allowed to secure health insurance covering the children so that he would not be required to pay 79.27% of the health-insurance premium paid by Joel Hein, the mother’s current husband, for the health insurance coverage for Hein, Hein’s child, the mother, and the children.1 According to the father, he could secure health insurance without an additional cost to him and that that insurance would provide full coverage to the children in New York, where the mother and the children were currently living. After a hearing on the father’s motion, the trial court amended its judgment on June 15, 2011, to adjust the father’s child-support obligation downward to $929.84 per month and to adjust the child-support arrearage to $19,526.58 as a result of the trial court’s decision not to include the health-insurance premium paid by the mother’s current husband in its child-support-obligation calculation. The court specifically found that it would be manifestly unjust and inequitable to include the health-insurance premium in the child-support-obligation calculation under the facts of the case.

The mother sought postjudgment review of the trial court’s June 15, 2011, amended judgment. On July 22, 2011, the mother filed a notice of appeal to this court. The trial court denied the mother’s post-judgment motion on August 24, 2011. The mother’s notice of appeal therefore became effective on that date. See Rule 4(a)(5), Ala. R.App. P. (providing that a notice of appeal filed before the resolution of a post-judgment motion is held in abeyance and becomes effective on the date the post-judgment motion is resolved by a ruling or denied by operation of law).

Although neither party raises the issue of jurisdiction, we must first consider whether we have jurisdiction over this appeal. Baker v. Baker, 25 So.3d 470, 472 (Ala.Civ.App.2009) (stating that an appellate court may take notice of jurisdictional matters ex mero motu). We begin our analysis by considering Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Ala.Code 1975, § 30-3B-101 et seq. The UCCJEA sets out the basis for subject-matter jurisdiction in a child-custody proceeding.2 A state has jurisdiction to [965]*965enter an initial child-custody determination only when one of the criteria in § 30-3B-201(a) is satisfied.3 See § 30-3B-201(b) (“Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state”). Section 30-3B-201(a) provides:

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Bluebook (online)
93 So. 3d 961, 2012 WL 1237758, 2012 Ala. Civ. App. LEXIS 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hein-v-fuller-alacivapp-2012.