author: BRYAN, Judge.

text:
    Ex parte Jennifer Ann VEST (Herron). (In re Jennifer Ann Vest (Herron) v. David Jeremy Vest).
    2100647.
    Court of Civil Appeals of Alabama.
    Sept. 2, 2011.
    Rehearing Denied Oct. 28, 2011.
    Jacqueline E. Austin and J. Pratt Austin-Trucks of Law Offices of Jacqueline E. Austin, Wetumpka, for petitioner.
    G. Houston Howard II of Law Office of Keith A. Howard, LLC, Wetumpka, for respondent.
   BRYAN, Judge.

Jennifer Ann Vest (Herron) (“the mother”) petitions this court for a writ of mandamus directing the Elmore Circuit Court to vacate its April 13, 2011, order, which denied a renewed motion to dismiss and a second renewed motion to dismiss filed by the mother. We deny the petition.

This is the second time the mother and David Jeremy Vest (“the father”) have been before this court. In Ex parte Vest, 68 So.3d 881 (Ala.Civ.App.2011) (“Vest”), we denied the mother’s petition for a writ of mandamus directing the Elmore Circuit Court to vacate its order denying the mother’s original motion to dismiss or to transfer this proceeding.

Procedural History

In Vest, we recited the relevant procedural history before our decision in that case:

“On June 25, 2010, the father filed in the Elmore Circuit Court a motion seeking a modification of the provision awarding the mother custody of the parties’ minor daughter in the parties’ divorce judgment, which had been entered by the Elmore Circuit Court in 2002, and a finding of contempt against the mother based on allegations that she had violated the divorce judgment by denying the father the visitation to which he was entitled by virtue of the visitation provision in the divorce judgment. On July 23, 2010, the mother filed a motion to dismiss the father’s postdivorce proceeding on the ground that venue was not proper in the Elmore Circuit Court because, she said, (1) she had previously commenced a postdivorce proceeding in the Mobile Circuit Court that was still pending and the father had neither objected to venue in that proceeding nor moved the Mobile Circuit Court to transfer that proceeding to the Elmore Circuit Court, and (2) neither party was then living in Elmore County and the father had lived in Mobile County for over two years. On August 6, 2010, the mother amended her motion to assert an additional ground and to seek, as an alternative to dismissal, a transfer of the father’s postdivorce proceeding to the Mobile Circuit Court. The additional ground the mother asserted was that the father had waived any right he may have had to object to venue in the Mobile Circuit Court (1) by admitting in the mother’s postdivorce proceeding in the Mobile Circuit Court that he had lived in Mobile County and (2) by failing to assert an objection to venue in the Mobile Circuit Court. Following a hearing, the Elmore Circuit Court, on September 29, 2010, entered an order denying the mother’s motion.
“On November 8, 2010, the mother petitioned this court for a writ of mandamus. After a preliminary review of the petition, this court called for an answer to the petition and briefs in support of, and in opposition to, the mother’s petition.”

68 So.3d at 884 (footnote omitted).

In Vest, we concluded that the mother had failed to establish that she had a clear legal right to an order compelling the El-more Circuit Court to vacate its order denying the mother’s original motion to dismiss or to transfer the action. Explaining our rationale, we stated:

“The mother argues that the Elmore Circuit Court erred in denying her motion to dismiss or transfer the father’s postdivorce proceeding because, she says, § 6-5-440, Ala.Code 1975, bars the father’s postdivorce proceeding. Section 6-5-440 provides:
“ ‘No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.’
“Regarding § 6-5^440, the supreme court has stated:
“ ‘This Court has held that the obligation imposed on a defendant under Rule 13(a), Ala. R. Civ. P., to assert compulsory counterclaims, when read in conjunction with § 6-5-440, Ala. Code 1975, which prohibits a party from prosecuting two actions for the same cause and against the same party, is tantamount to making the defendant with a compulsory counterclaim in the first action a “plaintiff’ in that action (for purposes of § 6-5-440) as of the time of its commencement. See, e.g., Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So.2d 414 (Ala.1995); Penick v. Cado Systems of Cent. Alabama, Inc., 628 So.2d 598 (Ala.1993); Ex parte Canal Ins. Co., 534 So.2d 582 (Ala.1988). Thus, the defendant subject to the counterclaim rule who commences another action has violated the prohibition in § 6-5-440 against maintaining two actions for the same cause. We affirm the general rule expressed in these cases; to do otherwise would invite waste of scarce judicial resources and promote piecemeal litigation.’
“Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala.1999). The mother argues that the claim asserted in the postdivorcé proceeding commenced by the father in the Elmore Circuit Court constitutes a compulsory counterclaim in the postdivorce proceeding she commenced in the Mobile Circuit Court and, therefore, that his commencement of a postdivorce proceeding in the El-more Circuit Court violates § 6-5-440.
“Although the mother asserted in the Elmore Circuit Court that the postdi-vorce proceeding the father had commenced in that court was due to be dismissed or transferred due to the pen-dency of her previously commenced postdivorce proceeding in the Mobile Circuit Court, she neither cited § 6-5-440 to the Elmore Circuit Court in support of that assertion nor asserted in the Elmore Circuit Court that the claim asserted in the motion commencing the father’s postdivorce proceeding in the Elmore Circuit Court constituted a compulsory counterclaim in the mother’s postdivorce proceeding. In ruling on the mother’s mandamus petition, we cannot consider an argument that she did not present to the Elmore Circuit Court. See Ex parte American Res. Ins. Co., 58 So.3d 118, 121 n. 2 (Ala.2010) (‘Restoration Coatings did not argue to the trial court that Mobile County was an improper venue under § 6-3-7(a), Ala.Code 1975. Thus, any such argument has been waived.’). Moreover, even if we could consider the mother’s argument that the claim asserted in the father’s motion constitutes a compulsory counterclaim barred by § 6-5-440, the mother did not establish in the El-more Circuit Court that she was entitled to prevail on the merits of that argument because she did not file in the Elmore Circuit Court a copy of the pleading with which she commenced her postdivorce proceeding and, thus, failed to establish that the claim asserted in the father’s postdivorce proceeding was a compulsory counterclaim in her postdi-vorce proceeding in the Mobile Circuit Court. Therefore, we cannot hold that the Elmore Circuit Court erred in denying the mother’s motion to dismiss or transfer based on the mother’s argument that § 6-5-440 barred the father’s postdivorce proceeding. See Ex parte de Vega [, 65 So.3d 886, 895 (Ala.2010) ], and Ex parte Pike Fabrication [, Inc., 859 So.2d 1089, 1091 (Ala.2002) ].
“The mother also argues that the El-more Circuit Court erred in denying her motion to dismiss or transfer because, she says, venue is not proper in the Elmore Circuit Court because, she says, the father had been residing in Mobile County for more than six months when the mother commenced her postdivorce proceeding in the Mobile Circuit Court. However, although the mother alleged in her motion to dismiss or transfer that venue was not proper in the Elmore Circuit Court because, she said, the father had been residing in Mobile County for over two years and she had been residing in Mississippi, she did not submit any evidence proving those allegations. In the absence of any evidence proving those allegations, we cannot hold that the Elmore Circuit Court erred in denying the mother’s motion to dismiss or transfer based on the mother’s second argument. Id.
“The mother also argues that the El-more Circuit Court erred in denying her motion to dismiss or transfer because, she says, the father did not object to venue in her postdivorce proceeding in the Mobile Circuit Court and thereby waived any objection to venue in the Mobile Circuit Court. However, the mother did not submit to the Elmore Circuit Court the pleadings that had been filed in her postdivorce proceeding in the Mobile Circuit Court, and, consequently, there was no evidence before the Elmore Circuit Court proving that the father had waived his objection to venue in the Mobile Circuit Court. Therefore, we cannot hold that the El-more Circuit Court erred in denying the mother’s motion to dismiss or transfer based on the mother’s third argument.
“Accordingly, the mother has not established that she has a clear legal right to an order compelling the Elmore Circuit Court to vacate its order denying the mother’s motion to dismiss or transfer; therefore, we deny the mother’s petition for a writ of mandamus. See Ex parte Children’s Hosp. of Alabama, [931 So.2d 1, 5-6 (Ala.2005) ].”

68 So.3d at 882.

After we denied the mother’s petition for a writ of mandamus in Vest, the mother, on March 10, 2011, filed a renewed motion to dismiss the father’s postdivorce proceeding in the Elmore Circuit Court and, on April 8, 2011, filed a second renewed motion to dismiss the father’s post-divorce proceeding in the Elmore Circuit Court. The renewed motion to dismiss and the second renewed motion to dismiss asserted that the father’s postdivorce proceeding in the Elmore Circuit Court constituted a compulsory counterclaim in the postdivorce proceeding the mother had filed in the Mobile Circuit Court and, therefore, that the father’s postdivorce proceeding in the Elmore Circuit Court was barred by § 6-5-440, Ala.Code 1975. Those motions also asserted that the father’s postdivorce proceeding in the El-more Circuit Court should be dismissed because, the mother said, he had waived his objection to venue in the Mobile Circuit Court by failing to assert an objection to venue in the objection he had filed in response to the mother’s motion initiating her postdivorce proceeding in the Mobile Circuit Court. The mother attached to her motions certified copies of the motion she had filed to initiate her postdivorce proceeding in the Mobile Circuit Court and the objection that the father had filed in response. On April 13, 2011, the Elmore Circuit Court entered an order denying the mother’s renewed motion to dismiss and her second renewed motion to dismiss.

On April 14, 2011, the mother petitioned this court for a writ of mandamus. After a preliminary review of the petition, this court called for an answer to the petition and briefs in support of, and in opposition to, the mother’s petition.

Standard of Review

“A petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala.2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ‘ “ ‘(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 Inverness Constr. Co., 775 So.2d 158, 156 (Ala.2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999).”

Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005).

“Applying the general rules to a petition for a writ of mandamus challenging a ruling related to venue, this Court has held: ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987). ‘Our review is limited to only those facts that were before the trial court.’ Ex parte Kane, 989 So.2d 509, 511 (Ala.2008).”

Ex parte de Vega, 65 So.3d 886, 891 (Ala.2010).

Analysis

Section 30-3-5, Ala.Code 1975, determines the proper venue for both the mother’s postdivorce proceeding and the father’s postdivorce proceeding. Section 30-3-5 provides:

“Notwithstanding any law to the contrary, venue of all proceedings for petitions or other actions seeking modification, interpretation, or enforcement of a final decree awarding custody of a child or children to a parent and/or granting visitation rights, and/or awarding child support, and/or awarding other expenses incident to the support of a minor child or children, and/or granting post-minority benefits for a child or children is changed so that venue will lie in: (1) the original circuit court rendering the final decree; or (2) in the circuit court of the county where both the custodial parent or, in the case of post-minority benefits, where the most recent custodial parent, that parent having custody at the time of the child’s attaining majority, and the said child or children have resided for a period of at least three consecutive years immediately preceding the filing of the petition or other action. The current or most recent custodial parent shall be able to choose the particular venue as herein provided, regardless of which party files the petition or other action.”

(Emphasis added.)

The record establishes the following material facts. The Elmore Circuit Court entered a judgment divorcing the mother and the father on March 20, 2002. The divorce judgment awarded the mother primary physical custody of the parties’ child and awarded the father visitation. The father filed a petition to modify the divorce judgment in the Elmore Circuit Court on September 7, 2005, and the mother filed an answer to the father’s petition and a petition for a rule nisi in the Elmore Circuit Court on September 8, 2005. On October 6, 2006, the mother and the father entered into an agreement modifying the divorce judgment and resolving the disputes that were the subject of the 2005 postdivorce proceeding. The mother remained the custodial parent of the parties’ child. Sometime between March 20, 2002 and October 6, 2006, the mother and the parties’ child moved to Mississippi. Sometime after October 6, 2006, the father moved to Mobile County. When the mother filed her postdivorce proceeding in the Mobile Circuit Court on June 10, 2010, she and the parties’ minor child had resided in Mississippi for the three-year period immediately preceding the filing of that proceeding, and the father was residing in Mobile County.

Because the mother and the parties’ child had not resided in a county in Alabama for a period of at least three consecutive years immediately preceding the filing of her postdivorce proceeding in the Mobile Circuit Court, § 30-3-5 dictated that the proper venue for the mother’s postdivorce proceeding was the Elmore Circuit Court, which was “the original circuit court rendering the final [divorce] decree.” The fact that the father, who was not the custodial parent, was residing in Mobile County when the mother filed her postdivorce proceeding was irrelevant to the determination of the proper venue of the mother’s postdivorce proceeding under § 30-3-5. The father subsequently filed his postdivorce proceeding in the Elmore Circuit Court, which was the proper venue for that proceeding under § 30-3-5.

Thus, in arguing that § 6-5-440 bars the father’s postdivorce proceeding because she had previously filed a postdi-vorce proceeding in the Mobile Circuit Court, the mother is asking this court to hold that one former spouse may race to the courthouse and file a postdivorce proceeding in an improper venue and thereby bar the other former spouse from filing a postdivorce proceeding in the proper venue. The mother has cited no binding precedent that dictates that result. Moreover, if we were to hold that § 6-5-440 dictates such a result, we would be encouraging former spouses to race to the courthouse and forum shop. Consequently, we hold that, under the particular circumstances of this case, § 6-5-440 does not bar the father’s postdivorce proceeding in the El-more Circuit Court.

The mother also argues that the father waived his objection to venue in the Mobile Circuit Court by failing to object to venue in the objection he filed in response to the motion the mother filed to initiate her postdivorce proceeding in the Mobile Circuit Court. However, we cannot consider that issue because the Mobile Circuit Court, the court in which the waiver allegedly occurred, is the proper court to rule on that issue in the first instance and we do not have a ruling on that issue by the Mobile Circuit Court before us. See Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992) (“[A]n issue raised on appeal must have first been presented to and ruled on by the trial court.”).

Athough the mother presents additional arguments in support of her mandamus petition, we cannot consider them because she did not present them to the Elmore Circuit Court. See Vest, 68 So.3d at 884.

Accordingly, the mother has not established that she has a clear legal right to an order compelling the Elmore Circuit Court to vacate its order denying the mother’s renewed motion to dismiss and her second renewed motion to dismiss; therefore, we deny the mother’s petition for a writ of mandamus. See Ex parte Children’s Hosp. of Alabama, supra.

PETITION DENIED.

THOMPSON, P.J., and PITTMAN, J, concur.

THOMAS and MOORE, JJ., concur in the result, without writings.


source: Caselaw Access Project

author: MALONE, Chief Justice. STUART, Justice MURDOCK, Justice

license: Public Domain

text:
    Ex parte Jennifer Ann VEST (Herron). (In re Ex parte Jennifer Ann Vest (Herron) (In re Jennifer Ann Vest (Herron) v. David Jeremy Vest)).
    1110192.
    Supreme Court of Alabama.
    Sept. 14, 2012.
    Jacqueline E. Austin and J. Pratt Austin-Trucks of Law Offices of Jacqueline E. Austin, Wetumpka, for petitioner.
    G. Houston Howard II of Law Office of Keith A. Howard, LLC, Wetumpka, for respondent.
   MALONE, Chief Justice.

Jennifer Ann Vest (Herron) petitioned this Court for certiorari review of the decision of the Alabama Court of Civil Appeals denying her second petition for a writ of mandamus in a child-custody matter. We granted Jennifer’s petition to examine the rationale applied by the Court of Civil Appeals, which appeared to be premised upon a perceived conflict between Ala. Code 1975, § 6-5-440, Alabama’s abatement statute, and Ala.Code 1975, § 30-3-5, the statute providing for venue in proceedings seeking modification of child-custody and child-support orders. Jennifer argues to this Court that the Court of Civil Appeals’ rationale conflicts with the mandate of § 6-5-440.

In Ex parte Vest, 130 So.3d 566 (Ala.Civ.App.2011), the Court of Civil Appeals examined what it apparently perceived as tension between §§ 6-5-440 and 30-3-5. The court held, in pertinent part:

“[I]n arguing that § 6-5-440 bars the father’s postdivorce proceeding because she had previously filed a postdivorce proceeding in the Mobile Circuit Court, the mother is asking this court to hold that one former spouse may race to the courthouse and file a postdivorce proceeding in an improper venue and thereby bar the other former spouse from filing a postdivorce proceeding in the proper venue. The mother has cited no binding precedent that dictates that result. Moreover, if we were to hold that § 6-5-440 dictates such a result, we would be encouraging former spouses to race to the courthouse and forum shop. Consequently, we hold that, under the particular circumstances of this case, § 6-5-440 does not bar the father’s postdivorce proceeding in the Elmore Circuit Court.”

Vest, 130 So.3d at 571. We reject the race-to-the-courthouse rationale announced by the Court of Civil Appeals in Vest. Venue in a child-custody-modification action can be waived. See, e.g., S.D.F. v. A.K., 875 So.2d 326, 327-28 (Ala.Civ.App.2003) (holding that the mother had waived venue of ongoing custody-modification proceedings by referring to future proceedings, but not to the proceedings then pending, in objecting to venue); Russey v. Dunlap, 532 So.2d 630 (Ala.Civ.App.1988) (reversing a trial court’s sua sponte dismissal of a child-support-modification action and further determining that the father had waived objections to venue in that court).

It does not follow from the principle that venue in child-custody-modification proceedings can be waived that a forum-shopping parent can “file a postdi-vorce proceeding in an improper venue and thereby bar the other former spouse from filing a postdivorce proceeding in the proper venue,” Vest, 130 So.3d at 571, because the respondent parent can always object to venue in his or her first responsive pleading in the court in which venue is alleged to be improper. Nor does the requirement that a party object immediately to venue or waive the venue issue constitute a trap for the unwary, because Rule 12, Ala. R. Civ. P., has long provided that a defense of improper venue can be waived if omitted from the first responsive pleading.

We therefore reverse the judgment of the Court of Civil Appeals and remand this cause to that court for further consideration of § 6-5-440 and any other arguments that may have been pretermitted by the Court of Civil Appeals’ analysis.

REVERSED AND REMANDED.

WOODALL, BOLIN, PARKER, SHAW, and MAIN, JJ., concur.

STUART, MURDOCK, and WISE, JJ., concur specially.

STUART, Justice

(concurring specially).

The main opinion and Justice Murdock’s special concurrence address principles relating to venue in a child-custody-modification proceeding; I write to note an additional principle. Alabama’s abatement statute, § 6-5-440, Ala.Code 1975, must be timely raised as a defense to a second-filed action or it is waived. Section 6-5-440 provides:

“No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pen-dency of the former is a good defense to the latter if commenced at different times.”

This Court noted in Washington Mutual Bank, F.A. v. Campbell, 24 So.3d 435, 437 n. 2 (Ala.2009), that § 6-5-440 is not jurisdictional:

“‘[Section 6-5-440] does not provide that the trial court “is deprived of’ jurisdiction over the second-filed action, or that the second-filed action “is void.” Instead, § 6-5-440 provides that when two actions are commenced at different times, the pendency of the first-filed action “is a good defense” to the second-filed action. Thus, a defendant must raise the first-filed action as a defense in a motion to dismiss.’ ”

(Quoting First Tennessee Bank, N.A. v. Snell, 718 So.2d 20, 27 (Ala.1998) (See, J., concurring in the result).) “ ‘ “[I]f that defense is not raised by the defendant in a motion to dismiss, ... it is waived.” ’ ” Perdue v. Green, 127 So.3d 343, 350 n. 4 (Ala.2012) (quoting Regions Bank v. Reed, 60 So.3d 868, 884 (Ala.2010), quoting in turn Veteto v. Yocum, 793 So.2d 814, 815 n. 1 (Ala.Civ.App.2001)).

MURDOCK, Justice

(concurring specially).

The main opinion notes two corollary principles in its analysis: “Venue in a child-custody-modification action can be waived” and “the respondent parent can always object to venue in his or her first responsive pleading in [a] court in which venue is alleged to be improper.” 130 So.3d at 573. I write separately to emphasize that the reason for these statements in the main opinion is solely to explain how and why it is that Ala.Code 1975, § 6-5-440, Alabama’s abatement statute, and Alabama statutes and rules of procedure pertaining to venue and objections to venue do not necessitate a “race to the courthouse.” Section 6-5-440 does not require some inquiry into whether an otherwise valid objection to the venue of an earlier filed action has or has not been waived in that earlier action. Why that earlier action may remain pending is between the parties and the court in that action; it is not a matter to be inquired into by the court in the later filed action. All the court in the later action is called upon or authorized to do under § 6-5-440 is to ascertain whether there is pending, for whatever reason, in another court of this state an earlier filed “action ... for the same cause.” See also Ex parte Norfolk Southern Ry., 992 So.2d 1286 (Ala.2008) (holding that a party with a compulsory counterclaim in an earlier filed action constitutes a “plaintiff’ in that action for purposes of § 6-5-440). If there is, then, under the terms of § 6-5-440, the later filed action must be dismissed.

WISE, J., concurs.


text:
    Ex parte Jennifer Ann VEST (Herron). (In re Jennifer Ann Vest (Herron) v. David Jeremy Vest).
    2100647.
    Court of Civil Appeals of Alabama.
    Jan. 11, 2013.

      Jacqueline E. Austin and J. Pratt Austin-Trucks of Law Offices of Jacqueline E. Austin, Wetumpka, for petitioner.
    G. Houston Howard II of Law Office of Keith A. Howard, LLC, Wetumpka, for respondent.
   After Remand from the Alabama Supreme Court

BRYAN, Judge.

The supreme court has reversed this court’s September 2, 2011, judgment and remanded the cause for further consideration of the petition for a writ of mandamus filed by Jennifer Ann Vest (Herron) (“the mother”) on April 14, 2011, in light of the supreme court’s decision. Ex parte Vest, 130 So.3d 572 (Ala.2012) (“the supreme court’s September 14 decision”).

In our September 2, 2011, judgment, we did not address the issue whether the mother had waived her affirmative defense based on § 6-5-440, Ala.Code 1975, and had failed to revive it before the Elmore Circuit Court entered its April 13, 2011, order, which is the subject of the mother’s April 14, 2011, mandamus petition.

Section 6-5-440 provides:

“No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pen-dency of the former is a good defense to the latter if commenced at different times.”

(Emphasis added.) As noted by Justice Stuart in her special concurrence in the supreme court’s September 14 decision, § 6-5-440 “ ‘ “does not provide that the trial court ‘is deprived of jurisdiction over the second-filed action, or that the second-filed action ‘is void.’ ” ’ ” 130 So.3d at 574 (Stuart, J., concurring specially) (quoting Washington Mut. Bank, F.A. v. Campbell, 24 So.3d 435, 437 n. 2 (Ala.2009), quoting in turn First Tennessee Bank, N.A. v. Snell, 718 So.2d 20, 27 (Ala.1998) (See, J., concurring in the result)). Rather, § 6-5-440

“ ‘constitutes an affirmative defense, and if that defense is not raised by the defendant in a motion to dismiss, Benson v. City of Scottsboro, 286 Ala. 315, 317, 239 So.2d 747, 748-49 (1970) (stating that the defense must be raised by a “plea in abatement,” the procedural predecessor of the motion to dismiss), it is waived. Chappell v. Boykin, 41 Ala. App. 137, 141, 127 So.2d 636, 639 (1960).’ ”

Regions Bank v. Reed, 60 So.3d 868, 884 (Ala.2010) (quoting Veteto v. Yocum, 793 So.2d 814, 815 n. 1 (Ala.Civ.App.2001)). Like other affirmative defenses, however, if an affirmative defense based on § 6-5-440 is waived, it can be revived under certain circumstances. See Regions Bank, 60 So.3d at 884.

In the present case, on July 23, 2010, the mother filed in the Elmore Circuit Court a motion to dismiss or to transfer the postdivorce proceeding (“the father’s postdivorce proceeding”) filed by David Jeremy Vest (“the father”) in that court. See Ex parte Vest, 68 So.3d 881, 883 (Ala.Civ.App.2011). Although she asserted in that motion that the father’s postdivorce proceeding was due to be dismissed or transferred because a postdi-vorce proceeding she had commenced in the Mobile Circuit Court (“the mother’s postdivorce proceeding”) was already pending when the father commenced his postdivorce proceeding, she neither cited § 6-5-440 to the Elmore Circuit Court in support of that assertion nor asserted that the claim asserted by the father in his postdivorce proceeding constituted a compulsory counterclaim in the mother’s post-divorce proceeding and, therefore, that § 6-5-440 barred him from asserting that claim in his postdivorce proceeding. 68 So.3d at 885.

After the Elmore Circuit Court denied the mother’s July 23, 2010, motion to dismiss or to transfer, the mother, on November 8, 2010, petitioned this court for a writ of mandamus directing the Elmore Circuit Court to vacate its order denying her July 23, 2010, motion to dismiss or to transfer. 68 So.3d at 882-84. The mother asserted as one of the grounds of her November 18, 2010, mandamus petition that the claim the father had asserted in his postdivorce proceeding constituted a compulsory counterclaim in the mother’s postdivorce proceeding and, therefore, that § 6-5-440 barred him from asserting that claim in his postdi-vorce proceeding. 68 So.3d at 884. However, we denied the mother’s November 18, 2010, mandamus petition insofar as it was based on that ground because the mother had neither cited § 6-5-440 to the Elmore Circuit Court nor asserted to that court that the claim asserted by the father in his postdivorce proceeding constituted a compulsory counterclaim in the mother’s postdivorce proceeding. 68 So.3d at 885.

After we denied the mother’s November 18, 2010, mandamus petition, the mother filed two motions in the father’s postdivorce proceeding; one of the motions was titled “Renewed Motion to Dismiss,” and the other was titled “Second Renewed Motion to Dismiss.” As one of the grounds of those motions, the mother asserted that the claim the father had asserted in his postdivorce proceeding constituted a compulsory counterclaim in the mother’s postdivorce proceeding and, therefore, that § 6-5-440 barred the father from asserting that claim in his post-divorce proceeding. The mother supported those motions with, among other things, matter that was outside the pleadings that had been filed in the father’s postdivorce proceeding (“the matter outside the pleadings”). On April 13, 2011, the Elmore Circuit Court entered an order stating: “Renewed dispositive motion (summary judgment, judgment on the pleadings, or other dispositive motion not pursuant to Rule 12(b)[, Ala. R. Civ. P.]) filed by [the mother] is hereby denied.”

On April 14, 2011, the mother petitioned this court for a writ of mandamus directing the Elmore Circuit Court to vacate its April 13, 2011, order. Because (1) the mother had supported her motions titled “Renewed Motion to Dismiss” and “Second Renewed Motion to Dismiss” with the matter outside the pleadings and (2) the El-more Circuit Court, in ruling on those motions, did not expressly decline to consider the matter outside the pleadings, those motions were automatically converted to motions for a summary judgment. See Phillips v. AmSouth Bank, 833 So.2d 29, 31 (Ala.2002). In Phillips, the supreme court stated:

“ ‘[W]here matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment ... regardless of its denomination and treatment by the trial court.’ Boles v. Blackstock, 484 So.2d 1077, 1079 (Ala.1986). Indeed, unless the trial court expressly declines to consider the extraneous material, its conclusions may be construed to include the extraneous material. Cf. Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 763 n. 1 (Ala.2002) (trial court’s express refusal to consider extraneous material constituted an exclusion).”

833 So.2d at 31.

When the mother filed those motions for a summary judgment, she had waived her affirmative defense based on § 6-5-440 by failing to assert it in the July 23, 2010, motion to dismiss or to transfer she had filed in the father’s postdivorce proceeding, see Regions Bank, supra, and an affirmative defense that has been waived cannot be revived by raising and litigating it in a summary-judgment proceeding, see Rector v. Better Houses, Inc., 820 So.2d 75, 79 (Ala.2001) (“[A]n affirmative defense the defendant has waived cannot be revived by the fact that it is raised and litigated in a summary-judgment proceeding.”). Moreover, the materials before us do not indicate that the mother had revived that affirmative defense in any other manner before asserting it as a ground of her motions for a summary judgment. Consequently, we conclude that the mother had waived her affirmative defense based on § 6-5-440 and had not revived it before the Elmore Circuit Court denied her motions for a summary judgment and, therefore, that the Elmore Circuit Court did not err in denying those motions insofar as they were based on § 6-5-440.

The mother also argues that she is entitled to a writ of mandamus compelling the Elmore Circuit Court to vacate its April 13, 2011, order denying her motions for a summary judgment because, she says, the proper venue for the claim asserted in the father’s postdivorce proceeding is the Mobile Circuit Court. Section 30-3-5, AIa.Code 1975, determines the proper venue for both the mother’s postdi-vorce proceeding and the father’s postdi-vorce proceeding. Section 30-3-5 provides:

“Notwithstanding any law to the contrary, venue of all proceedings for petitions or other actions seeking modification, interpretation, or enforcement of a final decree awarding custody of a child or children to a parent and/or granting visitation rights, and/or awarding child support, and/or awarding other expenses incident to the support of a minor child or children, and/or granting post-minority benefits for a child or children is changed so that venue will lie in: (1) the original circuit court rendering the final decree; or (2) in the circuit court of the county where both the custodial parent or, in the case of post-minority benefits, where the most recent custodial parent, that parent having custody at the time of the child’s attaining majority, and the child or children have resided for a period of at least three consecutive years immediately preceding the filing of the petition or other action. The current or most recent custodial parent shall be able to choose the particular venue as herein provided, regardless of which party files the petition or other action.”

(Emphasis added.)

The record establishes the following facts that are material to a determination of the proper venue for the claim asserted in the father’s postdivoree proceeding. The Elmore Circuit Court entered a judgment divorcing the mother and the father on March 20, 2002. The divorce judgment awarded the mother primary physical custody of the parties’ child and awarded the father visitation. The father filed a petition to modify the divorce judgment in the Elmore Circuit Court on September 7, 2005, and the mother filed an answer to the father’s petition and a petition for a rule nisi in the Elmore Circuit Court on September 8, 2005. On October 6, 2006, the mother and the father entered into an agreement modifying the divorce judgment and resolving the disputes that were the subject of the 2005 postdivoree proceeding. The mother remained the custodial parent of the parties’ child. Sometime between March 20, 2002, and October 6, 2006, the mother and the parties’ child moved to Mississippi. Sometime after October 6, 2006, the father moved to Mobile County. When the mother filed her postdivoree proceeding in the Mobile Circuit Court on June 10, 2010, she and the parties’ minor child had resided in Mississippi for the three-year period immediately preceding the filing of that proceeding, and the father was residing in Mobile County.

Because the mother and the parties’ child had not resided in a county in Alabama for a period of at least three consecutive years immediately preceding the filing of her postdivoree proceeding in the Mobile Circuit Court, § 30-8-5 dictated that the proper venue for the mother’s postdivoree proceeding was the Elmore Circuit Court, which was “the original circuit court rendering the final [divorce] decree.” The fact that the father, who was not the custodial parent, was residing in Mobile County when the mother filed her postdivoree proceeding was irrelevant to the determination of the proper venue of the mother’s postdivoree proceeding under § 30-3-5. The father subsequently filed his postdivoree proceeding in the Elmore Circuit Court, which was the proper venue for that proceeding under § 30-3-5. Therefore, the Elmore Circuit Court did not err in denying the mother’s motions for a summary judgment insofar as they were based on her contention that the Mobile Circuit Court was the proper venue for the claim asserted in the father’s post-divorce proceeding.

The mother also argues that the father waived his objection to improper venue in the mother’s postdivoree proceeding by omitting such an objection from the first pleading he filed in the mother’s post-divorce proceeding. However, the issue whether the father waived his objection to the Mobile Circuit Court as the venue for litigating the mother’s postdivoree proceeding is irrelevant to the issue whether she is entitled to a writ of mandamus directing the Elmore Circuit Court to vacate its April 13, 2011, order denying the mother’s summary-judgment motions because, due to the mother’s waiver of her affirmative defense based on § 6-5-440, the father is entitled to prosecute his post-divorce proceeding in the Elmore Circuit Court separately from, and independently of, the mother’s postdivoree proceeding unless she should revive and assert her affirmative defense based on § 6-5-440 in the future. See Washington Mutual Bank, 24 So.3d at 437 n. 2 (holding that § 6-5-440 does not deprive the trial court of jurisdiction over the second-filed action or render the second-filed action void); and Regions Bank, 60 So.3d at 884 (holding that § 6-5-440 is an affirmative defense that can be waived). Thus, any alleged waiver of the father’s objection to the Mobile Circuit Court as the venue for litigating the mother’s postdivorce proceeding would have no effect on the father’s separate and independent postdi-vorce proceeding in the Elmore Circuit Court. Id. Moreover, if the mother should revive and assert her affirmative defense based on § 6-5-440 in the future, the issue whether the father had waived his objection to the Mobile Circuit Court as the venue for litigating the mother’s postdi-vorce proceeding would still be irrelevant to the Elmore Circuit Court’s determination regarding whether § 6-5^140 barred the father from prosecuting his postdi-vorce proceeding in the Elmore Circuit Court because, as noted by Justice Mur-dock in his special concurrence in the supreme court’s September 14 decision, “[sjection 6-5-440 does not require some inquiry into whether an otherwise valid objection to the venue of an earlier filed action has or has not been waived in that earlier action.” Ex parte Vest, 130 So.3d at 574 (Murdock, J., concurring specially).

Although the mother presents additional arguments in support of her April 14, 2011, mandamus petition, we cannot consider them because she did not present them to the Elmore Circuit Court. See Ex parte M &F Bank, 58 So.3d 111, 117 (Ala.2010) (“Because it does not appear that the circuit court was presented with an argument concerning Rule 502(b)(3), [Ala. R. Evid.,] we will not consider that argument as a reason for issuing the writ of mandamus.”).

Because the mother has failed to establish that she has a clear legal right to the writ of mandamus she seeks, we deny the mother’s petition. See Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005) (“The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ‘ “ ‘(1) a clear legal right in the petitioner to the order sought(quoting Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000), quoting in turn other cases)).

PETITION DENIED.

PITTMAN, THOMAS, and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

      . For a detailed recitation of the procedural history of this cause before the mother filed the mandamus petition that is now before us, see Ex parte Vest, 68 So.3d 881 (Ala.Civ.App.2011), and Ex parte Vest, 130 So.3d 566 (Ala.Civ.App.2011).

        . The supreme court has held that Rule 13(a), Ala. R. Civ. P., which governs compulsory counterclaims, when read in conjunction with § 6-5-440, makes the defendant with a compulsory counterclaim in the first-filed action a plaintiff in that action for purposes of § 6-5-440. See Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala.1999). "Thus, the defendant subject to the [compulsory] counterclaim rule who commences another action has violated the prohibition in § 6-5-440 against maintaining two actions for the same cause.” Id.


author: BOLIN, Justice. MURDOCK, Justice

text:
    Ex parte Jennifer Ann VEST (Herron). (In re Jennifer Ann Vest (Herron) v. David Jeremy Vest).
    1120769.
    Supreme Court of Alabama.
    May 10, 2013.
    Jacqueline E. Austin and J. Pratt Austin-Trucks of Law Offices of Jacqueline E. Austin, Wetumpka, for petitioner.
    Submitted on petitioner’s brief only.

       Justice Bryan was a member of the Court of Civil Appeals when that court considered this case.

   BOLIN, Justice.

WRIT DENIED. NO OPINION.

MOORE, C.J., and STUART and MAIN, JJ., concur.

MURDOCK, J., concurs specially.

BRYAN, J., recuses himself.

MURDOCK, Justice

(concurring specially).

I question the conclusion reached by the Court of Civil Appeals in its opinion on remand from this Court that the mother in a post-divorce proceeding had waived her affirmative defense arising under Ala.Code 1975, § 6-5-440, by failing to assert that defense in a motion to dismiss or to transfer filed in that proceeding. Ex parte Vest, 130 So.3d 574 (Ala.Civ.App.2013). Because this waiver issue is not presented in the petition for certiorari review now before this Court, however, I concur in denying that petition.