Pat v. Db

638 So. 2d 905, 1994 Ala. Civ. App. LEXIS 176, 1994 WL 127842
CourtCourt of Civil Appeals of Alabama
DecidedApril 15, 1994
DocketAV92000465, AV92000487
StatusPublished

This text of 638 So. 2d 905 (Pat v. Db) 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
Pat v. Db, 638 So. 2d 905, 1994 Ala. Civ. App. LEXIS 176, 1994 WL 127842 (Ala. Ct. App. 1994).

Opinion

638 So.2d 905 (1994)

P.A.T.
v.
D.B.
In the Matter of P.T., P.T., and P.T.

AV92000465, AV92000487.

Court of Civil Appeals of Alabama.

April 15, 1994.

*907 Oscar W. Adams III, Birmingham, for appellant.

David R. Arendall of Arendall & O'Kelley, Birmingham, for appellee.

THIGPEN, Judge.

This case involves visitation and custody petitions.

In October 1992, D.B., the maternal grandmother (grandmother) filed dependency petitions in the Family Court of Jefferson County (Alabama court) regarding three of her minor grandchildren, alleging that those children were dependent, and requesting visitation pursuant to Ala.Code 1975, § 30-3-4. The grandmother further filed custody affidavits in compliance with Ala.Code 1975, § 30-3-29, stating that those children resided in Birmingham, Alabama, at the time of the filing of the petition, and that they had lived there five years preceding. The children's father, P.A.T. (father), had custody of the children at the time the grandmother filed the petitions. In her petitions, the grandmother alleged that the father had denied the grandmother visitation with the children since the death of their mother. In December 1992, the grandmother filed a motion for temporary visitation, and the trial court ordered supervised visitation. The court set dates for hearings, which were apparently continued by agreement of the parties. The record contains a letter from the father dated January 11, 1993, releasing his first attorney, as well as that attorney's motion to withdraw dated January 13, 1993; however, these documents bear no filing stamp and are not recorded on the case action summaries.

The record reveals that A.A., the father's sister (paternal aunt), who resided in Washington, D.C., filed a petition for custody of the children on January 7, 1993, in the Superior Court of the District of Columbia, Family Division (D.C. court). That petition stated that the paternal aunt did not know of any past or pending proceedings involving the custody of the children, that she did not know of any person claiming a right to custody of the children, and that the mother's will requested that the paternal aunt be granted custody of her children. The complaint was supported by an affidavit allegedly signed by the father, which stated, inter alia, that the paternal aunt "is the biological mother of" the children, that the children lived with the paternal aunt and attended school in Washington, D.C., and that the father desired that the paternal aunt be awarded legal custody of the children. In January 1993, the D.C. court entered an order, awarding custody to the paternal aunt and granting visitation to the father.

On January 20, 1993, the grandmother filed amended petitions in the Alabama court, alleging that the father had intentionally violated the orders of the Alabama court by removing the children from the jurisdiction of that court to Washington, D.C., by improperly attempting to transfer custody to the paternal aunt in Washington, D.C., and by failing to have the children present for trial as ordered. The grandmother requested that custody of the children be granted to her.

The Alabama court reset the trial for March 8, 1993. The father, represented by a different attorney, filed a motion for continuance or, in the alternative, a motion to dismiss. The grounds for the motion were that the paternal aunt, as custodian of the children pursuant to the D.C. court's order, was not made a party to the Alabama proceedings, and that she refused to allow the father to take the children to Alabama for the trial.

*908 The Alabama court ordered the father to bring the children to Alabama to appear in court for trial or face contempt charges. The judge further stated that "[the father] went to Washington, D.C. to clearly avoid the jurisdiction of this court. It is to me a sham any way you look at it."

When the case was called for trial, the father failed to appear or to have the children available as instructed by the court. At the beginning of that proceeding, the Alabama court expressly found the father in civil contempt for failing to appear in court and for failing to bring the children to court. The judge stated on record:

"... this court had ordered on at least one other prior occasion that [the father] have the children present in court, and that order too was not obeyed by [the father]....
"Subsequent to that, this court set this case for trial and was given what I now believe to be false information about a doctor's appointment that [the father] had in Washington....
"... in these proceedings today I would find that [the father] is in direct contempt of the orders of this court ... in that he himself did not appear as ordered by this court and he did not produce the children as ordered by this court."

After ore tenus proceedings, conducted in the absence of the father and the children, the Alabama court entered orders on March 24, 1993, granting detailed visitation to the grandmother, holding the father in contempt, and issuing an attachment against the father. The grandmother's post-judgment motion was denied. The father appealed and the grandmother cross-appealed.

On appeal, the father contends that the Alabama court did not have jurisdiction to hear the petition after the D.C. court entered its custody order, and that the Alabama court should not have proceeded without the paternal aunt before the court; he further contends that the Alabama court erred in holding him in contempt. On cross-appeal, the grandmother contends that the Alabama court erred in not awarding custody of the minor children to her or to the Jefferson County Department of Human Resources (DHR), and that the Alabama court abused its discretion in not awarding attorney fees to her after finding the father in contempt.

The father contends that the D.C. court entered its custody order prior to the entry of any order by the Alabama court, and that there was no evidence that the D.C. court was aware of proceedings in Alabama at that time. Alabama courts, pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), must recognize and enforce valid custody judgments of another state. Ala. Code 1975, §§ 30-3-20 to -44; In re Colburn, 497 So.2d 182 (Ala.Civ.App.1986). If, however, the D.C. court did not have proper jurisdiction, its judgment is not entitled to full faith and credit, and it is not mandatory that it be enforced pursuant to the UCCJA. In re Colburn, supra.

We note that Washington, D.C. has adopted the UCCJA, D.C.Code Ann.1981, §§ 16-4501 to -4524, and, for purposes of this case, those provisions are substantially the same as Alabama's UCCJA. The UCCJA provides the procedure for determining whether a state should assume jurisdiction of a custody matter. First, the court must determine whether it has jurisdiction to act pursuant to § 30-3-23(a). That section, in pertinent part, states:

"(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
"(1) This state:
"a. Is the home state of the child at the time of commencement of the proceeding; or
"b. Had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

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Cite This Page — Counsel Stack

Bluebook (online)
638 So. 2d 905, 1994 Ala. Civ. App. LEXIS 176, 1994 WL 127842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pat-v-db-alacivapp-1994.