Subject-Matter Jurisdiction Over Divorce - Pendente Lite Custody Order - Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)
Ex parte Cate, [Ms. 2190161, Feb. 21, 2020] __ So. 3d __ (Ala. Civ. App. 2020). The court (Thompson, P.J.; Moore, Donaldson, and Hanson, JJ., concur; Edwards, J., concurs in part and dissents in part) grants in part and denies in part the mother’s petition for a writ of mandamus challenging the Cullman Circuit Court’s subject-matter jurisdiction in a divorce proceeding.
In regard to subject-matter jurisdiction over the marital res, the court rejected the mother’s argument that a new divorce action filed by the father could not be used to correct jurisdictional defects in a prior divorce action filed prior to the father having been a resident of Alabama for six months. Ms. *9.
The mother also challenged the trial court’s pendente lite custody order entered without notice to her. In granting the writ as to the pendente lite custody order, the court held that a parent cannot be deprived of custody of his or her children (even temporarily) without appropriate notice and an opportunity to be heard. Ms. *18.
The court also granted the mother’s petition to the extent it challenged the trial court’s jurisdiction over the child custody issues. The court held:
[I]t is clear from the lack of argument by the parties concerning the UCCJEA that the trial court was not presented with the issue of its jurisdiction under the UCCJEA. The trial court’s comments during the October 16, 2019, hearing indicate that it did not consider the various grounds under § 30-3B-201 [Ala. Code 1975] in determining that it had jurisdiction over custody issues in case number CR[sic]-19-900325. Rather, those comments and the arguments of the parties indicate that the trial court relied solely on the father’s apparent residence in Alabama for the six months preceding his commencement of case number DR-19-900325.