author: MAXWELL, J.,

text:
    Stanley R. BOLIVAR and Cindy Bolivar, Appellants. v. Joyce WALTMAN, Appellee.
    No. 2010-CA-01982-COA.
    Court of Appeals of Mississippi.
    April 3, 2012.

      Debra Lynn Allen, attorney for appellants.
    Billie J. Graham, Laurel, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Stanley and Cindy Bolivar, the maternal grandparents of two minor children, challenge the sufficiency of the chancellor’s findings supporting the award of grandparent visitation to Joyce Waltman, the paternal grandmother. Because the children’s parents, who are necessary parties under Mississippi Code Annotated section 93-16-5 (Rev.2004), were not joined in the action, we find the chancellor lacked jurisdiction to address grandparent-visitation rights. Thus, we must vacate the chancellor’s award. On remand, we instruct the chancellor to fully apply the grandparent-visitation statute and the Martin factors in determining appropriate visitation.

FACTS

¶ 2. This dispute concerns the Bolivars’ and Waltman’s two grandchildren, who were approximately six and four years old at the time of the hearing in this case. The children’s parents were divorced in August 2006. Because both parents have a prolonged history of substance abuse, in May 2008 the chancellor appointed the Bolivars (the maternal grandparents) the children’s co-guardians.

¶ 3. Following their appointment, the Bolivars allowed Waltman (the paternal grandmother) visitation with the children every other weekend. Waltman’s arrangement was identical to the visitation granted to the children’s father (Waltman’s son) under the judgment of divorce, which remained the controlling custody order. The Bolivars eventually began limiting Walt-man’s visitation from every other weekend to every other Saturday from 8:00 a.m. to 5:00 p.m. Dissatisfied with this new arrangement, Waltman filed a petition for grandparent visitation.

¶ 4. The chancellor held a hearing, and Stanley, Cindy, and Waltman testified. Much of the Bolivars’ testimony focused on their reasons for scaling back Waltman’s visitation. Both Stanley and Cindy explained they were not opposed to Waltman exercising visitation, nor had they ever completely denied Waltman visitation. However, they disagreed Waltman should have the same amount of visitation as required for the father under the divorce judgment.

¶ 5. Following the hearing, the chancellor granted Waltman’s petition for grandparent visitation. He ordered Waltman’s visitation be the equivalent of father’s visitation under the judgment of divorce. The Bolivars appeal from this order.

DISCUSSION

I. Joinder of Necessary Parties

¶ 6. Although neither party raises the issue of jurisdiction, we must do so on our own initiative. E.g., Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (citing Common Cause of Miss. v. Smith, 548 So.2d 412, 414 (Miss.1989); Cotton v. Veterans Cab Co., 344 So.2d 730, 731 (Miss.1977); Byrd v. Sinclair Oil & Refining Co., 240 So.2d 623 (Miss.1970)). Whether the chancery court had jurisdiction over a particular matter is a question of law, which the appellate court reviews de novo. In re Guardianship of Z.J., 804 So.2d 1009, 1011 (¶ 9) (Miss.2002) (citing Burch v. Land Partners, L.P., 784 So.2d 925, 927 (¶ 7) (Miss.2001)).

¶ 7. Mississippi Code Annotated section 93-16-5 establishes the necessary parties to a proceeding for grandparent visitation:

All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children; and the court may, in its ■ discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child.

(Emphasis added). Section 93-15-107(1) lists as necessary parties in an action to terminate parental rights: “the mother of the child, the legal father of the child, and the putative father of the child, when known[.]” Miss.Code Ann. § 93-15-107(1) (Rev.2004). Likewise, we find these same parties are also indispensable in a custody determination. See Miss.Code Ann. § 93-27-205 (Rev.2004) (requiring service of process on “any parent whose parental rights have not been previously terminated” in interstate custody disputes); see also generally Deborah H. Bell, Bell on Mississippi Family Law § 19.01[3] (2005); cf. Smith v. Watson, 425 So.2d 1030 (Miss.1983) (finding a third-party with custody of a child is a proper party to a custody dispute between parents but not a necessary party).

¶ 8. We find section 93-16-5’s mandate clear and unambiguous that the natural parents whose parental rights have not been terminated must be parties to a grandparent-visitation proceeding. And we conclude that the requirement for the joinder of necessary parties in section 93-16-5 is jurisdictional. See Garrett v. Bohannon, 621 So.2d 935, 937-38 (Miss.1993) (holding similar mandatory “shall” language in Mississippi Code Annotated section 91-7-25 (Rev.2004), which establishes necessary parties to will contest, is a jurisdictional requirement); In re Estate of McClerkin, 651 So.2d 1052, 1058 (Miss.1995) (holding trial court lacked jurisdiction over will contest because “necessary and proper parties were not before the court.”) (citations omitted). As the supreme court similarly found in Garrett, we find that to give validity and credence to the trial court’s judgment without joinder of necessary parties would undermine the legislative mandate in section 93-16-5. Garrett, 621 So.2d at 937.

¶ 9. Because the trial court lacked jurisdiction to award grandparent visitation without joinder of the parents, we must vacate and remand. Though this issue is dispositive, we still address the applicable framework and factor-based analysis for deciding grandparent-visitation requests.

II. The Statutory Framework and Factors

¶ 10. Sufficient findings are required under the applicable statutory framework and factors. Grandparent visitation in Mississippi is governed by statute. • Mississippi Code Annotated section 93-16-3 (Supp.2011) provides:

(1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.
(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child.
(3) For purposes of subsection (2) of this section, the term “viable relationship” means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during the time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.

Once the statutory criteria are established, the chancellor must apply the following Martin factors to determine appropriate visitation:

1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

Townes v. Manyfield, 883 So.2d 93, 95-96 (¶ 17) (Miss.2004) (quoting Martin, 693 So.2d at 916). The Mississippi Supreme Court has explained that “making findings of fact under the Martin factors is an integral part of a determination of what is in the best interest of a child.” Id. at 97 (¶ 29) (quoting T.T.W. v. C.C., 839 So.2d 501, 505 (¶ 12) (Miss.2003)). Because of the “integral” nature of these findings, our supreme court specifically instructs that “the Martin factors are to be applied and discussed in every case in which grandparent visitation is an issue.” Id. (emphasis added).

¶ 11. There is additional general guidance regarding the amount of visitation that should be awarded. “The visitation granted to a grandparent should be less than that which would be awarded to a non-custodial parent, unless the circumstances overwhelmingly] dictate that that amount of visitation is in the best interest of the child, and it would be harmful to the child not to grant it.” Id. at 96 (¶ 21). And in cases where “a chancellor finds ... a grandparent should be awarded equivalent visitation to that of a parent, those findings must be fully discussed on the record.” Id. at 97 (¶ 29).

¶ 12. Further, we note that the grandparent-visitation statute and the Martin factors apply whether the grandparent is seeking visitation from a natural or adoptive parent. T.T.W., 839 So.2d at 503-06 (¶¶ 1-2, 7, 10, 17) (finding grandparent-visitation statute and Martin factors applicable where maternal grandparents adopted children, and paternal grandmother sought visitation); see also Woodell v. Parker, 860 So.2d 781, 785-86 (¶ 15), 789-90(¶ 29) (Miss.2003). Thus, we find it logical that both the grandparent-visitation statute and the Martin factors should similarly apply to the present situation where a grandparent is seeking visitation rights from the children’s legal guardians. See Townes, 883 So.2d at 97 (¶ 29) (instructing that Martin factors must always be applied where grandparent visitation is at issue)

¶ 13. Because chancellors are required to make specific findings on the Martin factors in every case involving grandparent visitation, the supreme court has vacated grandparent-visitation awards unsupported by such findings. Townes, 883 So.2d at 97-98 (¶ 30); T.T.W., 839 So.2d at 506 (¶ 17); Morgan v. West, 812 So.2d 987, 992 (¶ 14), 997(¶ 38) (Miss.2002). On remand, the chancellor should fully discuss his findings concerning the grandparent-visitation statute and Martin factors. Failure to do so may amount to reversible error. See Townes, 883 So.2d at 97-98 (¶¶ 28-30).

CONCLUSION

¶ 14. We vacate and remand because, under section 93-16-5, the children’s parents are necessary parties to the grandparent-visitation proceeding, and they were not joined in this matter. On remand, once all necessary parties are properly joined, we instruct the chancellor to (1) apply the statutory framework found in section 93-16-3 and (2) make specific findings on the Martin factors.

¶ 15. THE JUDGMENT OF THE JONES COUNTY CHANCERY COURT IS VACATED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Martin v. Coop, 693 So.2d 912, 916 (Miss.1997).

      . Stanley explained he was initially "under the impression” that Waltman was entitled to the same visitation granted to the father under the judgment of divorce.

      . To be clear, and at the risk of stating the obvious, we note that "custodian” should be substituted in place of "parent” when applying the Martin factors to the facts of this particular case.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Glen PICARD, Appellant v. Paula PICARD, Appellee.
    No. 2009-CA-01557-COA.
    Court of Appeals of Mississippi.
    April 3, 2012.

      Calvin D. Taylor, attorney for appellant.
    William E. Tisdale, attorney for appel-lee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2007, Glen Picard filed for divorce from his wife, Paula Picard, in the Jackson County Chancery Court. A trial commenced in 2008, after which the chancellor issued a lengthy ruling of the court and entered a judgment of divorce. Two years later, Glen moved to alter or amend the judgment and alternatively requested a new trial. The chancellor denied Glen’s request, and Glen filed the instant appeal. Glen requests that the chancery court’s judgment be reversed as to the division of equity in the marital home, the alimony award, and the allocation of federal and state tax exemptions and tax refunds for the years 2005 through 2007. Finding no reversible error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Glen and Paula were married for fifteen years, during which time they had four daughters. Glen served on active duty with the United States military for approximately fifteen years while married to Paula. At the time Glen filed his complaint for divorce, he had been in service with the military for approximately twenty years. Glen had also worked in Louisiana for the New Orleans Police Department for approximately fourteen years.

113. While serving in the military, Glen and his family were transferred to Keesler Air Force Base in Biloxi, Mississippi. The couple purchased a home in Ocean Springs, Mississippi, where they lived until Hurricane Katrina destroyed much of the Mississippi Gulf Coast in 2005. The couple’s marital home was severely damaged by Hurricane Katrina, and Glen agreed to remain in Ocean Springs while Paula and the children evacuated until the home was repaired enough for Paula and the children to live in it again. It was during this time that the couple claims their marriage became severely strained.

¶4. After the home was partially repaired, Paula and the children moved back home. At some point thereafter, Glen began a romantic affair with a woman named Tracey Fuette. Glen’s extramarital affair caused significant tension on the marriage, and Glen filed for divorce from Paula on February 16, 2007. Paula then filed an answer and counterclaim, which began a year-long contentious battle between the parties.

¶5. In February 2008, a two-day trial was conducted, after which the chancery court issued its findings and judgment. The couple’s divorce was granted on the basis of irreconcilable differences, and custody of the four children was given to Paula with Glen having substantial visitation rights. Glen and Paula’s financial condition was “a financial mess,” according to the chancellor. Specifically, in summarizing the parties’ financial distress, the chancellor analogized: “This [c]ourt is asked to cut off one end of a blanket and sew it to the opposite end and somehow make a longer blanket.” After reviewing the parties’ financial documents, the chancellor’s calculations showed Paula as having a loss of approximately $188.59 after her potential monthly income and debts were tallied. Glen was shown to be deficient approximately $1,053.60 after his monthly income and expenses were tallied.

¶ 6. The couple’s assets included the marital home, the equity of which totaled approximately $51,633.22 after repairs were made using Hurricane Katrina grant money. The chancellor ordered that final repairs be made to the home and that the home be sold upon the children reaching the age of majority. The home’s equity was to be distributed equally between the parties.

¶ 7. Despite Glen’s monthly debt, he was ordered to pay for COBRA health insurance for Paula for as long as the policy would allow and to pay $250 per month in alimony to Paula once the policy’s maximum time allowance was reached. The chancery court also ordered that Paula would receive the state and federal income tax dependent exemptions for two of the couple’s daughters and Glen would receive the exemptions for the parties’ other two daughters. Finally, the parties were ordered to equally divide their tax refunds for the years 2005 through 2007.

¶ 8. Aggrieved by the chancery court’s decision, Glen moved the court to reconsider. The chancery court denied Glen’s motion, from which he now appeals. On appeal, Glen claims the chancellor erred in the division of the equity in the marital home, allocation of alimony, and division of the tax exemptions and refunds. Finding no manifest error, we affirm.

DISCUSSION

I. Division of the Equity in the Marital Home

¶ 9. In domestic relations cases, we employ a limited standard of review. Carrow v. Carrow, 741 So.2d 200, 202 (¶ 9) (Miss.1999). Specifically, “[w]e will not disturb the findings of a [c]hancellor unless the [c]haneellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. (citation omitted). With regard to division and distribution of property, we maintain the objective of “a fair division based upon the facts of the case[.]” Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997) (citing Ferguson v. Ferguson, 689 So.2d 921, 929 (Miss.1994)).

¶ 10. In general, when dividing and distributing property, courts employ the following factors, which were laid out in Ferguson v. Ferguson, 689 So.2d 921, 928 (Miss.1994):

(1) Substantial contribution to the accumulation of the property ...[;]
(2) The degree to which each spouse has expended, withdrawn[,] or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decreet,] or otherwise[;]
(3) The market value and the emotional value of the assets subject to distribution[;]
(4) The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
(6) The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
(7) The needs of the parties for financial security with due regard to the combination of assets, ineome[,] and earning capacity; and,
(8) Any other factor which in equity should be considered.

“In reviewing a chancellor’s judgment, [the appellate court] does not conduct a Ferguson analysis anew, but reviews the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion.” Phillips v. Phillips, 904 So.2d 999, 1001 (¶ 8) (Miss.2004).

¶ 11. Glen’s first assignment of error challenges the distribution of equity and costs of the marital home. In analyzing his claim, we look to the chancery court’s ruling and order to determine whether an appropriate analysis was conducted by the chancellor. In the chancellor’s ruling, he reviewed the appraisal of the home and determined the home was valued at $127,000 in its then-current condition, without the completion of repairs needed after Hurricane Katrina. An analysis of the home’s mortgage debt resulted in the chancellor subtracting the property’s principal balance of $83,674.56, leaving a net equity of the home of $43,325.44.

¶ 12. Paula was awarded the remaining Hurricane Katrina grant money, which totaled $8,307.78. However, Paula was charged with using the funds only for repairs to the marital home and was ordered to provide proof to Glen that she had expended the grant money to repair the marital home. After doing so, the chancellor assigned the net equity in the home a value of $51,633.22. Upon the parties’ children reaching the age of majority, the chancery court ordered that the house should be sold and the profits equally divided between Glen and Paula. Furthermore, while Paula was granted possession of the home in which to reside with the four children, the chancellor ordered Glen and Paula to equally divide the home’s monthly mortgage payment, taxes, insurance, costs of reasonable repairs, and costs of general upkeep.

¶ 13. As such, the debt and equity of the home were divided fairly between Glen and Paula, with both sharing equally all monetary matters relating to the home. The only advantage Paula was given with regard to the marital home was the ability to live in the home. However, since Paula was granted custody of the four children, we do not find this advantage was an abuse of the chancellor’s discretion.

¶ 14. We have long held that Mississippi is an equitable-distribution state and that we look to the Ferguson factors to determine if property is divided equitably. Owen v. Owen, 798 So.2d 894, 399 (¶ 14) (Miss.2001). The chancellor’s lengthy ruling included a review of the market value of the home both prior to the needed repairs and after the completion of the repairs, an analysis of the equity available to both parties, as well as the needs of both parties in relation to the home, including Paula’s custody of the four children. Having reviewed the chancellor’s extensive analysis, we determine the Ferguson factors were properly considered with regard to the marital home. This issue is merit-less.

II. Alimony

¶ 15. Glen next asks us to review the chancellor’s allocation of alimony to Paula. The chancellor ordered that Glen pay the cost of COBRA health-insurance coverage for Paula up to the maximum amount of time allowed under the policy. Once the COBRA coverage expires, Glen must pay $250 a month in periodic alimony until Paula remarries, cohabitates, or begins receiving a portion of Glen’s military retirement, whichever occurs first.

¶ 16. In the chancellor’s ruling, he correctly acknowledged that an award of alimony is statutorily within the discretion of the trial judge under Mississippi Code Annotated section 93-5-23 (Rev.2009), which allows the trial court to “make all orders ... touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him.” The chancellor specifically noted the following factors laid out in Brabham v. Brabham, 226 Miss. 165, 176, 84 So.2d 147, 153 (1955), and later refined in Hemsley v. Hemsley, 639 So.2d 909, 912-13 (Miss. 1994) with regard to alimony:

(1) the health of the husband and his earning capacity;
(2) the health of the wife and her earning capacity;
(3) the entire sources of income of both parties;
(4) the reasonable needs of the wife;
(5) the reasonable needs of the children];
(6) the necessary living expenses of the husband;
(7) the estimated amount of income taxes the respective parties must pay on their incomes;
(8) the fact that the wife has the free use of the home, furnishings[,] and automobile; and
(9) such other facts and circumstances bearing on the subject that might be shown by the evidence.

One year prior to Hemsley, the Mississippi Supreme Court enumerated the following factors in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), which must be considered when reviewing cases involving spousal support:

(1) The income and expenses of the parties;
(2) The health and earning capacities of the parties;
(3) The needs of each party;
(4) The obligations and assets of each party;
(5) The length of the marriage;
(6) The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
(7) The age of the parties;
(8) The standard of living of the parties, both during the marriage and at the time of the support determination;
(9) The tax consequences of the spousal support order;
(10) Fault or misconduct;
(11) Wasteful dissipation of assets by either party; or,
(12) Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

While the chancery court did not specifically list the Armstrong factors in its order, the court’s analysis nonetheless included consideration of each Armstrong factor, albeit in somewhat of an indirect fashion.

¶ 17. A thorough review of both parties’ financial conditions reveals that Paula’s net monthly pay totaled $2,321 and that her expenses, including the entire house note and other debts assigned to her, totaled $3,369.19. As such, Paula lacked approximately $1,048.19 per month in income to meet her expenses. However, her expenses were decreased by half the value of the house note since the chancellor ordered the note to be paid equally by Glen and Paula. Additionally, Paula testified she could increase her net monthly pay by approximately $268. As such, the chancellor determined Paula would lack approximately $188.59 per month to meet her necessary monthly expenses.

¶ 18. The chancellor then reviewed Glen’s financial condition. Glen’s net monthly income was $3,659, and his combined total expenses were $4,712.60, including his payment of one-half of the mortgage note. He lacked $1,053.60 per month to pay for his monthly expenses. However, the chancellor later noted Glen’s overstatement of his expenses by approximately $217.50. Nonetheless, both parties lacked sufficient funds to meet their monthly expenses. The chancellor noted their financial quandary, stating: “These parties are in a financial mess. Even without a divorce, which results in the necessity of two households, these parties are in financial disarray.”

¶ 19. The chancellor went on to acknowledge that Glen’s extramarital affair weighed heavily against him with regard to the marital fault of the parties. Directly before ordering Glen to pay periodic alimony, the chancery court stated: “It is without question that Mr. Picard’s income earning potential is higher than Ms. Pi-card’s. This is also a lengthy marriage and, in my opinion, this divorce is due to Mr. Picard’s fault or misconduct.” As such, it is evident the chancellor appropriately reviewed the applicable factors in granting Paula periodic alimony. We cannot find error in the chancellor’s alimony award. This issue is without merit.

III. Division of Tax Exemptions and Tax Refunds

¶ 20. Glen next asserts the chancery court improperly divided the state and federal income tax dependent exemptions for the children and the parties’ state and federal tax refunds. In his order, the chancellor assigned the state and federal income tax dependent exemptions for two of the children to Glen and the exemptions for the remaining two children to Paula. Additionally, Glen and Paula were ordered to agree to hire one accountant “to maximize the tax benefit of the Hurricane Katrina losses between the parties considering the separate income[s] of the parties.” Glen and Paula were then ordered to equally divide all tax refunds for the years 2005, 2006, and 2007.

¶21. The equal division of both the income tax dependent exemptions and the tax refunds reflects the chancellor’s attempt to divide the benefits fairly between the parties. The chancellor thoroughly analyzed the parties’ contributions during the marriage and the needs of the parties following the divorce in his ruling and order. The chancellor did not abuse his discretion in his analysis or his decision to split the exemptions and refunds equally. This issue is meritless.

¶ 22. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.


author: SHAW, Justice.

text:
    Ex parte HAMPTON INSURANCE AGENCY and Ginger A. Spencer. Ex parte Acceptance Indemnity Insurance Company and Ashland General Agency, Inc. (In re Mary Alice Patton d/b/a Hole in the Wall Lounge v. Hampton Insurance Agency et al.).
    1101211 and 1101226.
    Supreme Court of Alabama.
    Nov. 18, 2011.

      James N. Walter, Jr., and Patricia R. Osuch of Capell & Howard, P.C., Montgomery, for petitioners Hampton Insurance Agency and Ginger A. Spencer.
    J. Mark Hart of Hand Arendall LLC, Birmingham, for petitioners Acceptance Indemnity Insurance Agency and Ashland General Agency, Inc.
    Gene T. Moore and Alan L. Vickrey of Law Office of Gene T. Moore, P.C., Tuscaloosa, for respondent.
   SHAW, Justice.

In separate petitions, Hampton Insurance Agency (“Hampton”) and Ginger A. Spencer (case no. 1101211) and Acceptance Indemnity Insurance Company (“Acceptance”) and Ashland General Agency, Inc. (“Ashland”) (case no. 1101226), the defendants in an action filed in the Hale Circuit Court by Mary Alice Patton d/b/a Hole in the Wall Lounge alleging that they failed to procure insurance coverage, petition this Court for writs of mandamus directing the trial court to transfer the underlying action to the Tuscaloosa Circuit Court. Because of the identical nature of the mandamus relief sought, we have consolidated the two petitions for the purpose of issuing one opinion. We grant the petitions and issue the writs.

Facts and Procedural History

In November 2008, Patton purchased from Spencer, an independent insurance agent who was doing business in Tuscaloosa County as Hampton, insurance coverage for her lounge located in Hale County. At the heart of the underlying dispute is the nature and extent of the coverage Patton sought. Patton’s policy, which was obtained by Hampton through Ashland, a surplus-lines agency that serves as a general agent for Acceptance, included only liquor-liability and general-liability coverage.

In May 2009, the building in which Patton operated the lounge was destroyed by fire. Upon filing an insurance claim associated with the damage to the lounge, Patton was informed that her insurance policy did not include coverage for property damage. As a result, on August 18, 2009, Patton sued Hampton and fictitiously named “Defendants A, B, and C,” alleging that the “Defendants were negligent and/or wanton in their procurement of full coverage insurance for [Patton] on her lounge building and its contents.” Hampton responded with a motion to dismiss pursuant to Rule 12(b)(3), Ala. R. Civ. P., or, in the alternative, to transfer the case on the ground that Hale County constituted an improper venue. More specifically, Hampton’s motion alleged that Hampton is a sole proprietorship whose only office is located in Tuscaloosa County. In support of its motion, Hampton attached Spencer’s affidavit reflecting that Hampton is an unincorporated entity operated by Spencer as a sole proprietorship in Tuscaloosa County, where Spencer resides.

Patton subsequently amended her complaint to add numerous additional counts and to name Spencer, Ashland, and Acceptance as defendants. Thereafter, Hampton renewed its initial motion seeking a transfer of the case to Tuscaloosa County, which Spencer, Acceptance, and Ashland joined. Hampton, Spencer, Acceptance, and Ashland also subsequently — and repeatedly — filed supplemental materials, including both information disclosed during discovery and recently released decisions of this Court, in support of the requested transfer, which Patton continued to oppose.

On June 15, 2011, following a hearing, the trial court entered an order denying the requested transfer based on its conclusion that venue in Hale County was proper at the time Patton originally filed her action against Hampton. Specifically, the trial court concluded that § 6-3-6, Ala. Code 1975, and this Court’s decisions in Ex parte Greenetrack, Inc., 25 So.3d 449 (Ala.2009), Ex parte Perfection Siding, Inc., 882 So.2d 307 (Ala.2003), and Ex parte Swift Loan & Finance Co., 667 So.2d 706, 707 (Ala.1995), controlled. In further support of its decision, the trial court’s order denying the requested transfer included the following:

“Hampton Insurance Agency and/or Ginger A. Spencer conducted business in Hale County in that they sold at least five (5) policies of insurance in Hale County, they inspected the properties that were insured, advertised in a phone book of general publication and distribution in Hale County and the policy in question in this case was delivered via United States Postal Service regular mail in Hale County. The actual policy at issue in this matter was sold by Hampton and/or Ginger Spencer, Brokered through Ashland and written by Acceptance.”

The instant petitions were filed on July 21, 2011; this Court ordered answers and briefs.

Standard of Review

“ ‘ “The question of proper venue for an action is determined at the commencement of the action.” ’ Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002) (quoting Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001)). If venue is improper at the outset, then upon motion of the defendant, the court must transfer the case to a court where venue is proper. Ex parte Pike Fabrication, 859 So.2d at 1091. If the defendant’s motion is denied, then the defendant is entitled to seek review of this decision by petitioning for a writ of mandamus. Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000).
‘Mandamus 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 Integon Corp., 672 So.2d 497, 499 (Ala.1995). This Court reviews mandamus petitions seeking review of a venue determination by asking whether the trial court exceeded its discretion in granting or denying the motion for a change of venue. Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala.2002). Also, in considering such a mandamus petition, this Court is limited to those facts that were before the trial court. Ex parte Pike Fabrication, 859 So.2d at 1091.”

Ex parte Perfection Siding, Inc., 882 So.2d at 309-10.

Discussion

In their respective petitions, the petitioners contend that venue was improper in Hale County at the time the underlying litigation commenced and that the trial court, therefore, erred in denying their motions to transfer the action to Tuscaloosa County. Specifically, relying on this Court’s recent decision in Ex parte Hughes, 51 So.3d 1016 (Ala.2010), they maintain that § 6-3-2, Ala.Code 1975, the venue provision applicable to actions against individuals, clearly applies to sole proprietorships such as Hampton and that, therefore, venue is proper in Tuscaloosa County where Spencer resides and where all actions related to procurement of the subject insurance indisputably occurred. The petitioners further contend that the subsequent amendment of Patton’s complaint to name Acceptance and Ashland as defendants, which amendment they argue was not in keeping with the rules of fictitious-party practice, was insufficient to cure the improper venue at the beginning of the action and, thus, did not defeat the trial court’s mandate to transfer the action pursuant to Rule 82(d), Ala. R. Civ. P., to Tuscaloosa County. Patton counters that venue in Hale County was proper at the time of commencement of the action because, she contends, her amended complaint adding Acceptance and Ashland relates back to the filing of her original complaint; thus, she says, § 6-3-7(a)(3), Ala.Code 1975, not § 6-3-2(a)(3), controls and because venue is proper in Hale County as to Acceptance and Ashland, it is also proper there as to Hampton. See Rule 82(c), Ala. R. Civ. P. (“Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.”). We disagree.

“As this Court has frequently held, proper venue for an action is determined at the commencement of the action. Ex parte Mitchell, 690 So.2d 356 (Ala.1997); Ex parte Parker, 413 So.2d 1105 (Ala.1982); Ex parte Wilson, 408 So.2d 94 (Ala.1981); see also Rule 82(d)(1), Ala. R. Civ. P. If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper. Parker, supra; Rule 82(d)(1), Ala. R. Civ. P.
“Section 6-3-2, Ala.Code 1975, governs venue of actions against individuals. It provides that such an action must be brought in the county of the defendant’s residence or ‘in the county in which the act or omission complained of may have been done or may have occurred.’ § 6-3-2(a)(3); see also Rule 82(b)(1)(A), Ala. R. Civ. P.”

Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999) (emphasis added).

This Court, in determining the appropriate venue provision in actions initiated against a sole proprietorship, stated the following in Ex parte Hughes, supra:

“Hughes testified at the hearing on his motion to transfer that he operated RBM Transport as an unincorporated entity. Hughes testified that he had no partners in the endeavor, and it appears that RBM Transport had no distinct legal existence other than its operation by Hughes. For legal purposes, RBM Transport Company must therefore be considered a sole proprietorship. See Black’s Law Dictionary 1427 (8th ed.2004) (defining ‘sole proprietorship’ as ‘[a] business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity1). In Carolina Casualty Insurance Co. v. Williams, 945 So.2d 1030, 1035 (Ala.2006), this Court recognized that ‘Alabama law makes no distinction between an individual and a sole proprietorship operated by the individual. They are considered the same for legal purposes.’ (Citing Clardy v. Sanders, 551 So.2d 1057, 1059-60 (Ala.1989).) Accordingly, whether ‘Jesse Hughes d/b/a RBM Transport Company’ is characterized as an individual or a sole proprietorship the end result is the same— [the] breach-of-contract action must be viewed as one against an individual, and venue is accordingly governed by § 6-3-2(a), which by its terms applies to ‘proceedings of a legal nature against individuals ’ (emphasis added).”

51 So.3d at 1018-19 (footnote omitted).

In the present case, Spencer presented undisputed affidavit testimony demonstrating that Hampton is an unincorporated entity she operates as a sole proprietorship in Tuscaloosa County, where she also resides. That evidence brings this case squarely within this Court’s holding in Ex parte Hughes. Because Hampton, a sole proprietorship, was the only named defendant at the time the action was filed, the venue provisions governing individuals applied, and venue was proper either “in the county of [Spencer d/b/a Hampton’s] residence or in the county in which the act or omission complained of ... occurred.” § 6-3-2(a)(3). Under either of the foregoing alternatives, venue was clearly proper in Tuscaloosa County, where Patton purchased the allegedly deficient insurance coverage, not in Hale County.

Having determined that, at the time of Patton’s original filing, venue was improper in Hale County, we now consider whether Patton’s amendment substituting Acceptance and Ashland as named defendants related back to the commencement of her action and was, therefore, sufficient to render Hale County a proper venue for the action. We conclude that it was not.

As noted above, “[t]he question of proper venue for an action is determined at the commencement of the action.” Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). It is also well established that

“[l]ater amendments to the complaint to add parties or claims, with the exception of substituting the true name of a fictitiously named party, are not considered in determining whether venue is improper at the commencement of the action. See Rule 15(c)(4)[, Ala. R. Civ. P.] (‘relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h)[, Ala. R. Civ. P.]’).”

Ex parte Lugo de Vega, 65 So.3d 886, 892 (Ala.2010). See also Overstreet, 748 So.2d at 197 (recognizing that, “[i]n Ex parte Smith, 423 So.2d 844 (Ala.1982), this Court held that the substitution of a party for a fictitiously named party would relate back to the date of the commencement of the action for the purpose of determining proper venue”). However, in order for the relation-back doctrine to apply, a party must comply with the requirements of Rule 9(h), Ala. R. Civ. P. See Columbia Eng’g Int’l, Ltd. v. Espey, 429 So.2d 955, 958-59 (Ala.1983) (“[A] plaintiff, in order to invoke the relation back principles of Rules 9(h) and 15(c), [Ala. R. Civ. P.,] must meet the following criteria: 1) Plaintiff must state a cause of action against the fictitious party in the body of the original complaint; and 2) plaintiff must be ignorant of the identity of the fictitious party, in the sense of having no knowledge at the time of the filing that the later named party was in fact the party intended to be sued.”).

As explained in Ex parte Griffin, 4 So.3d 430 (Ala.2008), a case Patton cites in her response to the petitions:

“This Court has held with regard to Rule 9(h) and the relation-back principles of Rule 15(c), Ala. R. Civ. P., that the plaintiff must state a cause of action against the fictitiously named party in the body of the original complaint; that the plaintiffs ignorance of the true identity of the party intended to be sued is ‘in the sense of having no knowledge’ of the party’s identity at the time the complaint was filed; and that the plaintiff must have used due diligence in attempting to discover the identity of the fictitiously named party. Columbia Eng’g Int’l Ltd. v. Espey, 429 So.2d 955, 958 (Ala.1983). To be entitled to the benefit of the relation-back principles, the plaintiff must act with due diligence to ascertain the fictitiously named defendant’s true name and to promptly amend the complaint to correctly identify that defendant. The due-diligence standard, as stated in Davis v. Mims, 510 So.2d 227, 229 (Ala.1987), ‘is whether the plaintiff knew, or should have known or was on notice, that the substituted defendants were in fact the parties described fictitiously.’ ”

4 So.3d at 436. See also McGhee v. Martin, 892 So.2d 398, 410-11 (Ala.Civ.App.2004) (noting that Rule 9(h) allows relation back only for the benefit of “ ‘[t]he diligent plaintiff who is truly ignorant of the defendant’s identity at the time of filing the original complaint. ... ’ ” (quoting Kinard v. C.A. Kelly & Co., 468 So.2d 133, 135 (Ala.1985))).

Patton added Acceptance and Ashland as defendants after Hampton’s initial motion seeking a change of venue was filed. Although Patton contends, in her response to the instant petitions, that “[she] was ignorant of the identity of Ashland and Acceptance at the time of the filing of the original complaint,” we find that claim untenable. Specifically, we note, as do the petitioners, that Acceptance was identified on the face of Patton’s original complaint as the company from whom Hampton procured the subject coverage on Patton’s behalf. Therefore, we agree with the petitioners that there can be no argument that Patton either “ ‘ha[d] no knowledge’ of [Acceptance and/or Ashland’s] identities] at the time the complaint was filed” or that she “used due diligence in attempting to discover the identities] of the fictitiously named parties].” Griffin, 4 So.3d at 436.

In addition, we note that, as reflected on documentation attached to her amended complaint, a policy-change endorsement reinstating Patton’s policy, dated April 27, 2009 — which date is before the fire at Patton’s lounge and the resulting litigation— identified Acceptance as Patton’s insurance company and Ashland as Acceptance’s “authorized representative.” Furthermore, as acknowledged in Patton’s original complaint, not only did the face of the policy, which was provided to Patton following her purchase of insurance coverage, identify Acceptance as her insurer, but Spencer also testified that when Patton initially telephoned her office following the fire, Patton was referred directly to Ashland to inquire about making a formal claim.

Moreover, although Patton contends that her amended complaint properly substituted Acceptance and Ashland for fictitiously named defendants included in her original complaint, the language of her amended complaint appears to belie Patton’s argument in this regard. Specifically, in her brief to this Court, Patton states that “[o]n October 16, 2009, approximately two months after the filing of the original complaint, [Patton] filed an amended complaint substituting Acceptance ..., Ashland ..., and ... Spencer for the fictitious parties alleged in the original complaint.” Patton’s response brief, at p. 2. However, the pleading reveals that although Acceptance and Ash-land were added as defendants and numerous causes of action were asserted against them, there is nothing to suggest that their addition was a substitution of the true names of fictitiously named defendants A-C, as Patton argues. In fact, we note both the absence of any language in the amended complaint expressing the alleged intended “substitution” and the fact that, despite the purported substitution, fictitiously named defendants A-C remained as parties in Patton’s amended complaint. Thus, as of the filing of that amended pleading, all defendants that were purportedly fictitiously named at the commencement of Patton’s suit were still apparently unknown to Patton. Therefore, whatever arguments Patton may advance in this respect, her amended complaint seems to support the petitioners’ argument that her amendment did not effect a substitution of named defendants for previously identified fictitiously named defendants but, rather, merely added new defendants. See Overstreet, 748 So.2d at 197 (holding “that the addition of a new party, as distinguished from the substitution of a party for a previously named fictitious party, would not relate back for purposes of determining proper venue”). See also Ex parte Parker, 413 So.2d 1105, 1106 (Ala.1982), and Ex parte Wilson, 408 So.2d 94, 97 (Ala.1981).

Even assuming, however, that Patton took the proper procedural steps to substitute Acceptance and Ashland for defendants described fictitiously in her original complaint, we conclude that Patton possessed, before the filing date of that pleading, sufficient information to put her on notice, with the exercise of due diligence, that Acceptance and Ashland were the parties “who assisted [Hampton], and failed to procure ... full coverage insurance _” See supra n. 2. It is undisputed that Patton was provided documentation identifying both Acceptance and Ashland before she filed her original complaint. We, therefore, disagree with the argument that she was “truly ignorant” at the time her initial complaint was filed of their identities or of their role in issuing her policy. See also Pearson v. Brooks, 883 So.2d 185, 187-88 (Ala.2003) (concluding that, based on plaintiffs knowledge of names and job titles of coworkers, she “could not have reasonably been ignorant of their identities”), and Miller v. Norwood Clinic, Inc., 577 So.2d 860, 865 (Ala.1991) (concluding that medical records in plaintiffs possession prior to filing of original complaint revealed knowledge sufficient to identify supposed fictitiously named defendants as “parties intended to be sued”). Instead, it appears that, at the time of her initial complaint, Patton knew the identities of both Acceptance and Ashland, as well as their respective roles in the issuance of the policy that allegedly provided insufficient insurance coverage, or, at the very least, that, in the exercise of due diligence, that information was easily ascertainable by Patton. Cf. Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1291 (Ala.2008) (“eon-clud[ing] that [plaintiffs] amendment to substitute Nationwide for a fictitiously named defendant [did] not relate back to the date of her original complaint because she knew or should have known Nationwide’s identity” as her insurer or “could have discovered Nationwide’s identity and the existence of ... coverage simply by examining her policy”), and Ex parte Ismail, 78 So.3d 399, 405 (Ala.2011) (finding that, where plaintiffs possessed medical records identifying treating physician before they filed original complaint, “[they] did not exercise due diligence ... before filing their complaint, in identifying [physician] as the proper party to be sued”). Given those circumstances, we conclude, as we did in Pearson, supra, that it was “unreasonable to believe that [Patton] was ignorant of [Ashland’s] and [Acceptance’s] identities as required to proceed under the fictitious-party practice allowed by Rule 9(h).” 883 So.2d at 188.

Because Acceptance and Ashland were not properly substituted for fictitiously named defendants included in Patton’s original complaint, for purposes of establishing venue Patton’s amendment did not relate back to the date of her original complaint and did not render Hale County, an improper venue at the commencement of the action, a proper venue. Instead, for purposes of establishing venue at the commencement of the instant action, Hampton was the sole defendant. Because, under § 6-3-2, venue in Hale County was improper as to Hampton, a sole proprietorship, the trial court exceeded its discretion in denying the motions to transfer the case to Tuscaloosa County, where venue was proper. Ex parte Perfection Siding, Inc., 882 So.2d at 309-10. In light of the foregoing, we conclude that the petitioners have met the requirements for the issu-anee of the requested writs of mandamus; therefore, the trial court is directed to vacate its order denying the motions to transfer and to enter an order granting those motions and transferring the underlying action to the Tuscaloosa Circuit Court.

1101211 — PETITION GRANTED; WRIT ISSUED.

1101226 — PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and STUART, PARKER, and WISE, JJ., concur.

      . According to Spencer, she "shops” a client's requested coverage from several different carriers from whom she can obtain coverage quotes but with whom she has no contractual relationship.

      . Patton's complaint identified the fictitiously named defendants as "those persons, firms, partnerships, corporations, and/or entities doing business as or on behalf of or who assisted, and failed to procure ... full coverage insurance.”

      . The record reflects that the Hole in the Wall Lounge was located in a modified mobile home.

      . Specifically, as noted in Hampton and Spencer’s petition, although the initial motion to transfer was based on § 6-3-6, Ala.Code 1975, once "this Court, in Ex parte Hughes, [51 So.3d 1016 (Ala.2010),] clarified that the proper venue provision applicable to a sole proprietorship is Ala.Code § 6 — 3—2[,] Hampton and Spencer supplemented their Motions to Transfer based on this clarification in the law.” Hampton and Spencer’s petition, at p. 10 n. 19.

      . Section 6-3-6 provides that an ”[a]ction against an unincorporated organization or association may be commenced in any county where such organization or association does business or has in existence a branch or local organization.”

      . The three cases cited by the trial court concern venue determinations in actions in which the defendants were corporations.

      . Rule 82(d)(1) provides: "When an action is commenced laying venue in the wrong county, the court, on timely motion of any defendant, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

      . Section 6-3-7(a)(3), which prescribes venue of civil actions against both foreign and domestic corporations, provides that venue is proper "[i]n the county in which the plaintiff resided.” Notably, Patton is proceeding under subsection (a)(3) as opposed to subsection (a)(1), which provides that venue against a corporate defendant will lie "[i]n the county in which a substantial part of the events or omissions giving rise to the claim occurred. ...” Similarly, Patton does not argue in her response that the events or omissions giving rise to the underlying claims occurred in Hale County.

      . The petitioners contend that, as demonstrated through the deposition testimony of Spencer and a certified-mail receipt, copies of all information pertinent to Patton’s policy, in-eluding documents identifying both Acceptance and Ashland, were provided to Patton’s initial counsel of record on July 8, 2009, before her original complaint was filed.