text:
    EX PARTE Carolyn ROBINSON
    (In re: Linda Hall v. Carolyn Robinson et al.)
    2170180
    Court of Civil Appeals of Alabama.
    January 12, 2018
    Mand. pet. denied.


source: Caselaw Access Project

license: Public Domain

text:
    T.C. v. A.F.
    2170191
    Court of Civil Appeals of Alabama.
    March 30, 2018
    Affirmed.


text:
    M.M.M. v. DEPARTMENT OF HUMAN RESOURCES
    2170212
    Court of Civil Appeals of Alabama.
    February 20, 2018
    Dismissed.


text:
    Wanda Ward HUTCHINSON v. Reuben D. RUSSELL and Russell Management Group LLC
    2170203
    Court of Civil Appeals of Alabama.
    February 15, 2018
    Dismissed.


text:
    Lisa NISWANDER and Samuel Niswander v. CITIMORTGAGE, INC.
    2170206
    Court of Civil Appeals of Alabama.
    February 6, 2018
    Dismissed.


text:
    Dorothy GUERRIER v. 104 BURWELL SPRING LANE HV TRUST a/k/a Juliet Tien, et al.
    2170200
    Court of Civil Appeals of Alabama.
    January 30, 2018
    Dismissed.


text:
    Michael T. CHAPPELL, Sr. v. Frank WERCINSKI et al.
    2170218
    Court of Civil Appeals of Alabama.
    March 27, 2018
    Dismissed.


text:
    T.S. v. M.C.W. and C.M.W.
    2170232
    Court of Civil Appeals of Alabama.
    February 16, 2018
    Dismissed.


text:
    K.S. v. A.J.
    2170230
    Court of Civil Appeals of Alabama.
    February 12, 2018
    Dismissed.


text:
    Anthony HARRIS v. STATE
    2170216
    Court of Civil Appeals of Alabama.
    January 12, 2018
    Dismissed.


text:
    D.B. v. L.S.
    2170233
    Court of Civil Appeals of Alabama.
    January 4, 2018
    Dismissed.


text:
    EX PARTE NEW MILLENNIUM PROPERTY MANAGEMENT LLC
    (In re: Donald Ray Counts v. New Millennium Property Management LLC )
    2170257
    Court of Civil Appeals of Alabama.
    March 1, 2018
    Mand. pet. denied.


text:
    Carlos Lamar JACKSON v. Tanisha Robinson JACKSON
    2170248
    Court of Civil Appeals of Alabama.
    February 13, 2018
    Dismissed.


text:
    M.G. v. DEKALB COUNTY DEPARTMENT OF HUMAN RESOURCES
    2170246
    Court of Civil Appeals of Alabama.
    January 19, 2018
    Dismissed.


text:
    M.G. v. DEKALB COUNTY DEPARTMENT OF HUMAN RESOURCES
    2170247
    Court of Civil Appeals of Alabama.
    January 19, 2018
    Dismissed.


text:
    D.B. v. L.S.
    2170234
    Court of Civil Appeals of Alabama.
    January 4, 2018
    Dismissed.


text:
    Z.A. v. B.A.
    2170273
    Court of Civil Appeals of Alabama.
    February 2, 2018
    Dismissed.


text:
    Kenneth THOMAS v. Rose THOMAS
    2170289
    Court of Civil Appeals of Alabama.
    January 22, 2018
    Dismissed.


text:
    EX PARTE T.N-H.
    (In re: The matter of M.H., a minor child)
    2170293
    Court of Civil Appeals of Alabama.
    January 9, 2018
    Mand. pet. denied.


text:
    EX PARTE T.N-H.
    (In re: The matter of J.M., a minor child)
    2170294
    Court of Civil Appeals of Alabama.
    January 9, 2018
    Mand. pet. denied.


text:
    EX PARTE T.N-H.
    (In re: The matter of J.M., a minor child)
    2170295
    Court of Civil Appeals of Alabama.
    January 9, 2018
    Mand. pet. denied.


text:
    Antonio NICHOLS v. ALABAMA DEPARTMENT OF CORRECTIONS
    2170265
    Court of Civil Appeals of Alabama.
    January 2, 2018
    Dismissed.


text:
    B.C. v. M.A., P.H.B., T.C., and C.C.
    2170303
    Court of Civil Appeals of Alabama.
    March 5, 2018
    Transferred to DeKalb Cir. Ct. for trial de novo pursuant to Rule 28(D), Ala.R.Juv.P.


text:
    B.C. v. M.A., P.H.B., T.C., and C.C.
    2170304
    Court of Civil Appeals of Alabama.
    March 5, 2018
    Transferred to DeKalb Cir. Ct. for trial de novo pursuant to Rule 28(D), Ala.R.Juv.P.


text:
    Russell STEINER v. Britten STEINER
    2170300
    Court of Civil Appeals of Alabama.
    February 23, 2018
    Dismissed.


text:
    EX PARTE T.N-H.
    (In re: The matter of M.E., Jr., a minor child)
    2170296
    Court of Civil Appeals of Alabama.
    January 9, 2018
    Mand. pet. denied.


text:
    EX PARTE T.N-H.
    (In re: The matter of J.M., a minor child)
    2170297
    Court of Civil Appeals of Alabama.
    January 9, 2018
    Mand. pet. denied.


text:
    EX PARTE J.S.
    (In re: The matter of C.R.S., a minor child)
    2170315
    Court of Civil Appeals of Alabama.
    January 31, 2018
    Dismissed.


text:
    EX PARTE J.S.
    (In re: The matter of H.D.S., a minor child)
    2170316
    Court of Civil Appeals of Alabama.
    January 31, 2018
    Dismissed.


text:
    EX PARTE J.S.
    (In re: The matter of K.E.S., a minor child)
    2170317
    Court of Civil Appeals of Alabama.
    January 31, 2018
    Dismissed.


text:
    EX PARTE Jeremy Dwayne SHEARS
    (In re: Cassie Michelle Shears v. Jeremy Dwayne Shears)
    2170310
    Court of Civil Appeals of Alabama.
    January 8, 2018
    Dismissed.


text:
    H.J. v. O.H.
    2170311
    Court of Civil Appeals of Alabama.
    January 8, 2018
    Dismissed.


text:
    Britten STEINER v. Russell STEINER
    2170326
    Court of Civil Appeals of Alabama.
    February 23, 2018
    Dismissed.


text:
    EX PARTE Ronald D. VETETO
    (In re: Ronald D. Veteto v. Jeff Dunn et al.)
    2170320
    Court of Civil Appeals of Alabama.
    February 1, 2018
    Reh. denied.


text:
    EX PARTE J.S.
    (In re: The matter of G.E.S., a minor child)
    2170318
    Court of Civil Appeals of Alabama.
    January 31, 2018
    Dismissed.


text:
    EX PARTE Linda Pearson HEFFNER, NEXT FRIEND OF M.C.R., a minor
    (In re: Linda Pearson Heffner, next friend of M.C.R., a minor v. Action of Enterprise, Action Truck Center, Inc., and Cindy Leger)
    2170327
    Court of Civil Appeals of Alabama.
    January 5, 2018
    Dismissed.


text:
    EX PARTE Daniel J. MARTIN
    (In re: State v. Daniel Jesus Martin)
    2170324
    Court of Civil Appeals of Alabama.
    January 3, 2018
    Mand. pet. denied.


text:
    Sallie Mae SHEALY v. Lucy M. COOKS and James Foster
    2170343
    Court of Civil Appeals of Alabama.
    March 6, 2018
    Dismissed.


text:
    M.S. v. K.S.
    2170342
    Court of Civil Appeals of Alabama.
    February 22, 2018
    Dismissed.


text:
    G.G. v. T.R.M.
    2170335
    Court of Civil Appeals of Alabama.
    January 30, 2018
    Dismissed.


text:
    Cheryl C. MCSHAN v. Kenneth Wayne CHATMAN
    2170337
    Court of Civil Appeals of Alabama.
    January 29, 2018
    Dismissed.


text:
    EX PARTE A.A., individually and on behalf of A.S.A-C., a minor
    (In re: The matter of A.S.A-C., a minor)
    2170336
    Court of Civil Appeals of Alabama.
    January 8, 2018
    Mand. pet. denied.


text:
    C.E.R. v. J.L.D.
    2170355
    Court of Civil Appeals of Alabama.
    March 6, 2018
    Dismissed.


text:
    COWIN & CO. v. Jerry David MCCLUER
    2170371
    Court of Civil Appeals of Alabama.
    March 6, 2018
    Dismissed.


text:
    Kevin D. MILLER v. CITY OF DOTHAN PERSONNEL BOARD and City of Dothan
    2170357
    Court of Civil Appeals of Alabama.
    February 15, 2018
    Dismissed.


text:
    Renee Jacks BROWN v. Chris Young BROWN
    2170369
    Court of Civil Appeals of Alabama.
    February 13, 2018
    Dismissed.


text:
    MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES v. H.B.
    2170373
    Court of Civil Appeals of Alabama.
    February 1, 2018
    Dismissed.


text:
    D.J.B., Jr. v. S.G.M.
    2170407
    Court of Civil Appeals of Alabama.
    March 6, 2018
    Transferred to Wilcox Cir. Ct. for trial de novo pursuant to Rule 28(D), Ala.R.Juv.P.


text:
    Ashley K. FINCH v. Lonnie J. FINCH
    2170374
    Court of Civil Appeals of Alabama.
    February 28, 2018
    Dismissed.


text:
    Ferryn Nichole MOSS v. Thomas Shane MOSS
    2170377
    Court of Civil Appeals of Alabama.
    February 20, 2018
    Dismissed.


text:
    D.B. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2170394
    Court of Civil Appeals of Alabama.
    February 6, 2018
    Dismissed.


text:
    D.B. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2170395
    Court of Civil Appeals of Alabama.
    February 6, 2018
    Dismissed.


text:
    Scott Thomas HICKS v. Anastasia Raquel TRAVIS
    2170460
    Court of Civil Appeals of Alabama.
    March 30, 2018
    Dismissed.


text:
    Alice Avant WILSON v. David AVANT and Larry Avant
    2170413
    Court of Civil Appeals of Alabama.
    March 26, 2018
    Dismissed.


text:
    Felicia W. JOHNSON v. Dr. Cass Klim CAX
    2170438
    Court of Civil Appeals of Alabama.
    February 27, 2018
    Dismissed.


text:
    A.A.M. v. In the matter of E.J.M.A., minor child
    2170429
    Court of Civil Appeals of Alabama.
    February 20, 2018
    Dismissed.


text:
    John Bruce MCNIDER, Jr., Lezli McNider Thomason, and Emmett Oris McNider v. Peggy J. MCNIDER, Sweet Water State Bank, and Stratton F. Lewis, Jr.
    2170459
    Court of Civil Appeals of Alabama.
    February 8, 2018
    Transferred to Sup. Ct. for lack of subject-matter jurisdiction.


text:
    MONTGOMERY COUNTY DEPARTMENT OF HUMAN RESOURCES v. In the matter of A.B.
    2170484
    Court of Civil Appeals of Alabama.
    March 23, 2018
    Dismissed.


text:
    Jason RIMERMAN v. Heather LAWSON
    2170465
    Court of Civil Appeals of Alabama.
    March 14, 2018
    Dismissed.


text:
    R.H. v. TUSCALOOSA COUNTY DEPARTMENT OF HUMAN RESOURCES
    2170482
    Court of Civil Appeals of Alabama.
    February 23, 2018
    Transferred to Tuscaloosa Cir. Ct. for trial de novo pursuant to Rule 28(D), Ala.R.Juv.P.


text:
    EX PARTE K.E.M., Sr.
    (In re: C.A.S. v. K.E.M., Sr.)
    2170464
    Court of Civil Appeals of Alabama.
    February 14, 2018
    Transferred to Houston Cir. Ct.


text:
    MONTGOMERY COUNTY DEPARTMENT OF HUMAN RESOURCES v. In the matter of A.B.
    2170485
    Court of Civil Appeals of Alabama.
    March 23, 2018
    Dismissed.


text:
    Roger SHELL v. Shametris R. GOSHAY
    2170492
    Court of Civil Appeals of Alabama.
    March 20, 2018
    Dismissed.


text:
    Robert Evans LEWIS III v. Ana FRANKLIN, Sheriff of Morgan County
    2170490
    Court of Civil Appeals of Alabama.
    March 2, 2018
    Transferred to Ct. of Crim. App. for lack of subject-matter jurisdiction.


text:
    EX PARTE Stacia CROMARTIE
    (In re: Stacia Cromartie v. Alabama State University et al.)
    2170493
    Court of Civil Appeals of Alabama.
    March 1, 2018
    Transferred to Sup. Ct. for lack of subject-matter jurisdiction.


text:
    EX PARTE Charles Garland PITMAN and Sharon K. Doviet, as Guardian ad litem for the minor children
    (In re: Krista Chandler Pitman v. Charles Garland Pitman)
    2170495
    Court of Civil Appeals of Alabama.
    February 27, 2018
    Dismissed.


text:
    EX PARTE David SMITH
    (In re: Clayton Pierce and State Farm Mutual Automobile Insurance Co. v. David Wayne Smith)
    2170512
    Court of Civil Appeals of Alabama.
    March 27, 2018
    Dismissed.


text:
    John David BURT v. Faye Lynn BURT
    2170507
    Court of Civil Appeals of Alabama.
    March 23, 2018
    Dismissed.


text:
    EX PARTE LIMESTONE COUNTY BOARD OF EDUCATION
    (In re: E.E. v. Limestone County Board of Education)
    2170533
    Court of Civil Appeals of Alabama.
    March 14, 2018
    Mand. pet. granted.


text:
    J.P.M. v. In the matter of A.M.M.
    2170522
    Court of Civil Appeals of Alabama.
    March 7, 2018
    Transferred to Randolph Cir. Ct. for trial de novo pursuant to Rule 28(D), Ala.R.Juv.P.


text:
    A.R.Z. III v. In the matter of I.Z.P.
    2170498
    Court of Civil Appeals of Alabama.
    March 2, 2018
    Dismissed.


text:
    EX PARTE D.E. and T.G.
    (In re: Russell County Department of Human Resources v. D.E. and T.G.)
    2170574
    Court of Civil Appeals of Alabama.
    March 22, 2018
    Mand. pet. denied.


text:
    EX PARTE D.E. and T.G.
    (In re: Russell County Department of Human Resources v. D.E. and T.G.)
    2170575
    Court of Civil Appeals of Alabama.
    March 22, 2018
    Mand. pet. denied.


text:
    EX PARTE D.E. and T.G.
    (In re: Russell County Department of Human Resources v. D.E. and T.G.)
    2170576
    Court of Civil Appeals of Alabama.
    March 22, 2018
    Mand. pet. denied.


text:
    EX PARTE D.E. and T.G.
    (In re: Russell County Department of Human Resources v. D.E. and T.G.)
    2170578
    Court of Civil Appeals of Alabama.
    March 22, 2018
    Mand. pet. denied.


text:
    EX PARTE D.E. and T.G.
    (In re: Russell County Department of Human Resources v. D.E. and T.G.)
    2170579
    Court of Civil Appeals of Alabama.
    March 22, 2018
    Mand. pet. denied.


text:
    EX PARTE D.E. and T.G.
    (In re: Russell County Department of Human Resources v. D.E. and T.G.)
    2170580
    Court of Civil Appeals of Alabama.
    March 22, 2018
    Mand. pet. denied.


text:
    EX PARTE Karen MURPH
    (In re: Karen Murph v. Herbert L. Murph)
    2170588
    Court of Civil Appeals of Alabama.
    March 20, 2018
    Dismissed.


text:
    EX PARTE Nancy BUCKNER, Sam Smith, Pamela McClellan, and Teresa Ellis (employees of Alabama Department of Human Resources and Calhoun County Department of Human Resources)
    (In re: William David Streip, as personal representative of the Estate of Jerrie Leann Streip v. State Department of Human Resources, Nancy Buckner, Leviticus Place, Inc., Calhoun County Department of Human Resources, Sam Smith, Pamela McClellan, and Teresa B. Ellis)
    2170589
    Court of Civil Appeals of Alabama.
    March 20, 2018
    Transferred to Sup. Ct. for lack of subject-matter jurisdiction.


text:
    EX PARTE Baily Nicole CANNON
    (In re: Benjamin Miles Cannon v. Baily Nichole Cannon)
    2170608
    Court of Civil Appeals of Alabama.
    March 27, 2018
    Mand. pet. denied.


author: MOORE, Judge.

text:
    D.W. v. M.M.
    D.W. v. M.M.
    D.W. v. M.M.
    2170223 2170225 2170226
    Court of Civil Appeals of Alabama.
    September 21, 2018
    Terinna S. Moon of Moon & Melvin, LLC, Prattville, for appellant.
    Ashley N. Smith of Miller Smith, LLC, Montgomery, for appellee.
   MOORE, Judge.

D.W., the maternal great-aunt of W.T.D. ("the child"), appeals from a judgment entered by the Montgomery Juvenile Court ("the juvenile court") in several related actions concerning the child to the extent that it awarded custody of the child to M.M., the child's biological father. We reverse the juvenile court's judgment and remand the cases for the juvenile court to enter a new custody award.

Procedural History

On August 13, 2015, D.W. ("the maternal great-aunt") filed a dependency petition seeking custody of the child, whose date of birth is April 25, 2009; that petition was assigned case number JU-15-546.01 ("the .01 action"). She alleged that the child's mother, C.W. ("the mother"), had a history of abusing illegal substances and that, since February 20, 2015, the child had been living with the maternal great-aunt pursuant to a safety plan entered into with the Montgomery County Department of Human Resources ("DHR"). The maternal great-aunt listed A.D.G., the child's stepfather, as being the father of the child.

After a hearing, at which it was made known to the juvenile court that M.M. is the biological father of the child, the juvenile court entered a judgment in the .01 action, on March 3, 2016, finding the child dependent, awarding DHR legal custody of the child, awarding the mother unsupervised overnight visitation as mutually agreed upon by the parties, setting the case for a dispositional hearing, and ordering the maternal great-aunt to provide current information regarding the location of M.M. ("the father").

On May 19, 2016, the mother filed a petition requesting that the child be returned to her custody; that petition was assigned case number JU-15-546.02 ("the .02 action"). On May 23, 2016, the mother's attorney notified the juvenile court that the mother had died. The juvenile court dismissed the mother's petition in the .02 action on May 25, 2016.

On June 24, 2016, DHR filed a motion requesting that the juvenile court correct a scrivener's error in the March 3, 2016, judgment entered in the .01 action regarding the legal custody of the child. On that same date, the juvenile court entered, in the .01 action, an amended judgment that, among other things, awarded the maternal great-aunt legal custody of the child and ordered DHR to provide protective services. The juvenile court also noted that the .01 action was set for a dispositional hearing and again ordered the maternal great-aunt to provide information regarding the location of the father.

On July 25, 2016, the father filed a dependency petition and requested custody of the child; that petition was assigned case number JU-15-546.03 ("the .03 action"). On November 2, 2016, the father filed, in the .01 action, a motion alleging that his paternity of the child had never been established and requesting that the juvenile court establish his paternity of the child. On November 3, 2016, the juvenile court ordered, in the .01 action, a "DNA/Genetic Screening." After a hearing on April 28, 2017, in the .01 action and the .03 action, the juvenile court entered, in the .01 action, an order awarding the father supervised visits and telephone contact with the child.

At a hearing held on July 6, 2017, in the .01 action and the .03 action, the paternity results were presented to the juvenile court; those results indicated that there was a 99.9% probability that the father was the child's biological father. The father also presented to the juvenile court a judgment entered on November 10, 2010, by the 126th Judicial District Court of Travis County, Texas ("the Texas court"); in that judgment, the Texas Court, among other things, found the father to be the child's biological father, appointed the father and the mother as "Joint Managing Conservators of the child," awarded the mother the right to determine the child's primary residence, ordered the father to pay prospective and retroactive child support, and awarded the father visitation with the child. The father represented that, unknown to him, his mother had been in possession of the judgment of the Texas court and that he and his mother had discovered that judgment only when he returned to Texas after the April 28, 2017, hearing. Also at the July 6, 2017, hearing, the child's guardian ad litem recommended that the father be awarded sole physical custody of the child. In addition, the maternal great-aunt's attorney submitted that the maternal great-aunt would agree to the father's exercising visitation "for a few days" if the child wanted to visit with the father and the father submitted to and passed a drug test. The father declined to submit to a drug test.

The juvenile court thereafter entered an order on July 21, 2017, in the .01 action and the .03 action, directing the parties to maintain the status quo pending the juvenile court's contacting the Texas court regarding jurisdiction. On October 3, 2017, the Texas court entered an order declining to exercise jurisdiction over the custody of the child.

On September 28, 2017, A.D.G. ("the stepfather") filed a dependency petition requesting that he and the maternal great-aunt be awarded joint custody of the child; the stepfather's petition was assigned case number JU-15-546.04 ("the .04 action").

The final dispositional hearing on all the dependency petitions took place on October 22, 2017. Thereafter, on November 6, 2017, the guardian ad litem submitted a report stating, among other things:

"The [guardian ad litem] has significant concern about the [f]ather's long-term history and current evidence of drug use. The [guardian ad litem] has further concerns that the ... [f]ather spent more than one-third of the past 18 years incarcerated, coupled with the fact that he continues to engage in the use of illegal drugs. Although certain states may have legalized marijuana, the ... [f]ather does not live in any of these states. Should he be arrested for possession of marijuana, the [guardian ad litem] has concerns for the well being of the child if placed in his care."

On November 13, 2017, the juvenile court rendered and entered a single "final dispositional order of custody" in the .01 action, the .03 action, and the .04 action. That judgment found the child to be "dependent or neglected"; denied the maternal great-aunt's petition for custody in the .01 action; denied the petition filed by the stepfather in the .04 action in which he requested that he and the maternal great-aunt be awarded joint custody of the child; granted the father's petition for custody in the .03 action and awarded him temporary legal and physical custody of the child, with directions that the child remain with the maternal great-aunt until the 2017 school Christmas break. The judgment also awarded the stepfather and the maternal great-aunt visitation "as the parties can mutually agree"; ordered that, "to the extent possible, [DHR] shall maintain Protective Supervision over the child for a period of ninety (90) days ... in consultation with the State of Texas"; and closed the cases to further review. The juvenile court's judgment stated, in pertinent part:

"The [m]other apparently left the Texas Jurisdiction with the child and relocated for a period of time in Montgomery, Alabama, until her death, thereby leaving the child in the care of the [maternal great-aunt]. The [m]other and the child had for a period of time traveled between Texas and Alabama, as the [m]other was still married to [the stepfather]. Though paternity had been established in [the father], the child was not told this fact, and while he knew [the father], he did not know him as his father; instead, he knew ... the stepfather as his father. [The father] has known that he was the father of the child, and has in the past had contact and visitation with him; and has since the filing of the petitions herein increased his contact and visitation with the child. The child has also been able to visit with his siblings who reside in the home of the [f]ather.... It was clear that the [f]ather has had some involvement with the criminal justice system and has criminal convictions, including convictions for the possession of drugs. He asserted that he has not been involved in any such activity in the recent past and now owns his own business and is supporting his wife and family. There was also testimony that the [m]other, during the time she held custody of the child, was addicted to prescription drugs and engaged in the illegal use of the same; further the stepfather ... has been convicted of some drug possession, which he asserts he incurred to protect the [m]other. Aside from the [f]ather's involvement with the prior drug possession and use, there was no evidence that he is unable or unwilling to care and provide for his own son; especially in light of the Texas order which vested him with joint custody of the child. The Court does however believe that the child should be afforded an opportunity to transition into the care of [the f]ather, while also maintaining some degree of a relationship with [the stepfather] as well as the [maternal] great-aunt."

(Emphasis added.)

On November 20, 2017, the guardian ad litem filed a postjudgment motion. On November 22, 2017, the maternal great-aunt filed a postjudgment motion and a notice of appeal. The postjudgment motion filed by the guardian ad litem was denied by operation of law on December 4, 2017, and the maternal great-aunt's postjudgment was denied by operation of law on December 6, 2017. See Rule 1(B), Ala. R. Juv. P. Pursuant to Rule 4(a)(5), Ala. R. App. P., the maternal great-aunt's notice of appeal became effective on December 6, 2017, the date of disposition of the last filed postjudgment motion. On December 15, 2017, this court entered an order staying the juvenile court's judgment.

Facts

The maternal great-aunt resides in Alabama, and both the father and the stepfather reside in Texas. The evidence indicates that the mother married the stepfather shortly after the child was born. The evidence is undisputed that the child had known the stepfather as his father and had called him "Daddy." The maternal great-aunt and the stepfather testified that the stepfather had provided for the child since his birth.

The stepfather testified he had been present for the child's birth. He testified that he had taken a DNA test when the child was approximately one month old and that the results of that test had indicated that he was not the biological father of the child. He testified that, after seeing the results of the DNA test, the mother had told him that M.M. must be the child's father.

The stepfather testified that, for the first four years of the child's life, the child had lived with the stepfather and the mother in Texas. He testified that, around 2012 or 2013, the mother began traveling to Alabama. The maternal great-aunt testified that the mother and the child had begun staying with her in Alabama for periods but that they would also return to Texas for periods to stay with the stepfather. The maternal great-aunt and the stepfather agreed that the maternal great-aunt had provided care for the child for at least four years before the dispositional hearing. The maternal great-aunt testified that, at one point, the father had telephoned her expressing concern that the mother might be placing the child in foster care. She testified that she had told the father that the child was with her, and, she said, the father had indicated his agreement with that arrangement.

At the March 3, 2016, hearing, the stepfather testified that he had last seen the child in February 2015, although, he said, he had tried to visit the child in Alabama once or twice a year. The maternal great-aunt testified that the child speaks with the stepfather via telephone once a day before school. The stepfather testified that he does not use drugs but that he had been charged with possession of a controlled substance after the mother had left a bottle of drugs in his vehicle. He testified that, at the time of the dispositional hearing, he remained on probation as a result of that incident.

The child testified that he knows the stepfather as his "dad," that the stepfather had helped raise him, and that he wanted to live with the stepfather. He admitted that he had visited the father during the pendency of these cases, that he had enjoyed those visits, and that the father had taken care of him during those visits. A DHR court report admitted into evidence indicates that the child "does not wish to reside in the home with [the father,] does not have a positive light of his relationship with [the father,] does not know [the] father[,] and would not feel comfortable living in the home with him." The evidence indicates that, although the child had known the father, he had not known that the father was, in fact, his biological father until the child's guardian ad litem had informed him of that fact during the pendency of these cases.

The father testified that the mother had told him that the stepfather was the child's biological father. He testified, however, that he had suspected that he was the child's biological father. He testified further that he had known, by looking at the child, that the child was his biological child but that he had not known for certain until he had seen the paternity-test results during the pendency of these cases. When asked why he had not attempted to assert his rights as a father until the pendency of these cases, the father stated that the mother had been caring for the child and that he did not want to take the child away from the mother and that the stepfather was adequately serving as a "father figure" for the child. The father testified that he had never been served in the action in the Texas court but that he had discovered the existence of that court's judgment during the pendency of these cases. He testified that he had not paid any child support formally but that he had given the mother "a lot" of money and had provided gifts for the child.

DHR requested a recommendation from the Texas Department of Family and Protective Services concerning placement of the child with the father. That agency completed an assessment concerning the father and recommended that the child not be placed with the father. The report from the Texas Department of Family and Protective Services noted that the father has an extensive criminal history, mostly involving evading arrest and possession of controlled substances. The father's most recent conviction before the dispositional hearing had originated in 2014 from a possession-of-marijuana charge; he served six months in the county jail on that conviction and was released from jail in May 2016. The report further indicated that the father had sold drugs as his means of support until 2014. The father's live-in girlfriend testified that, despite having known about the father's drug-related activities, she had continued to reside with him and raise their children in the home with him.

The father testified at the dispositional hearing that he works full time doing construction and that he no longer sells or uses drugs. However, when the juvenile court requested that he submit to a drug test, the father admitted that he would test positive for marijuana. His drug screen was, in fact, positive for marijuana.

DHR recommended that the child remain in the custody of the maternal great-aunt.

Standard of Review

"Once a child is found dependent, a juvenile court may dispose of the custody of the child according to its determination of the best interests of the child. See § 12-15-314, Ala. Code 1975.

" ' In Ex parte Alabama Department of Human Resources, 682 So.2d 459 (Ala. 1996), the Alabama Supreme Court stated the applicable principles of appellate review in the context of a challenge to a juvenile court's custodial disposition of a dependent child:
" ' "Appellate review is limited in cases where the evidence is presented to the trial court ore tenus. In a child custody case, an appellate court presumes the trial court's findings to be correct and will not reverse without proof of a clear abuse of discretion or plain error. Reuter v. Neese, 586 So.2d 232 (Ala. Civ. App. 1991) ; J.S. v. D.S., 586 So.2d 944 (Ala. Civ. App. 1991). This presumption is especially applicable where the evidence is conflicting. Ex Parte P.G.B., 600 So.2d 259, 261 (Ala. 1992). An appellate court will not reverse the trial court's judgment based on the trial court's findings of fact unless the findings are so poorly supported by the evidence as to be plainly and palpably wrong. See Ex Parte Walters, 580 So.2d 1352 (Ala. 1991).
" ' 682 So. 2d at 460.'

" J.J. v. J.H.W., 27 So.3d 519, 522 (Ala. Civ. App. 2008)."

M.M. v. Colbert Cty. Dep't of Human Res., 117 So.3d 376, 382-83 (Ala. Civ. App. 2013).

Discussion

At common law, the father of a child was entitled to custody of his child vis à vis a nonparent unless clear and convincing evidence proved that the father was unfit for custody or had voluntarily forfeited his right to custody. See Ex parte Terry, 494 So.2d 628 (Ala 1986). In the dispositional phase of a dependency proceeding, however, the father of a child does not have any presumptive right to custody of his child as against more distant relatives. See J.P. v. S.S., 989 So.2d 591, 600 (Ala. Civ. App. 2008). Rather, the Alabama Legislature has determined that a juvenile court shall dispose of the custody of a dependent child based solely on the considerations of the welfare and best interests of that child. See Ala. Code 1975, § 12-15-314.

By that standard, when a parent has for a long time voluntarily allowed a child to live in the family of another, during which time that family has conscientiously and duly administered to the needs of the child such that the child has developed a matured and considered preference to remain in the custody and care of his or her new family, a court shall not use its coercive powers to change custody of the child simply in order to enforce the mere legal rights of a parent. See Garrett v. Mahaley, 199 Ala. 606, 608, 75 So. 10, 11 (1917). Even in cases in which a parent can better provide for the material needs of a child for food, clothing, shelter, medicine, education, and the other necessities of life, a court may not lightly disrupt a suitable custody arrangement that has been beneficial to the emotional and other intangible needs of the child. As then Justice Stuart explained: "[T]he court or the agency determining the best interest of the child must give great weight to the stability, security, and permanency of the relationship between the child and the child's caregiver." Ex parte T.V., 971 So.2d 1, 12 (Ala. 2007) (Stuart, J., dissenting).

In the present cases, the juvenile court expressly found in its judgment that the father had known that he was the biological father of the child. Despite that knowledge, the father had been content for years to fail to assert his parental rights and responsibilities to and for the child. The father acknowledged that he had allowed the child to be raised by the mother and the stepfather during the first four years of the life of the child. During that time, the stepfather assumed the paternal role for the child. Although the father apparently sporadically visited with the child during that time, it is apparent from the record that the father did not inform the child of his paternity or assume a fatherly relationship with the child. After the mother moved to Alabama, the father learned that the child was residing in the care and custody of the maternal great-aunt, who testified without contradiction that the father had acquiesced to that custodial arrangement. Although the juvenile court's statements appear to place the blame on persons other than the father, the evidence is clear that, at least in part due to the father's deliberate inaction, the child, who was eight years old at the time of the dispositional hearing, did not know the father as his father.

The evidence is further undisputed that, at the time of the dispositional hearing, the child had been residing off and on with the maternal great-aunt for many years and had been living exclusively with the maternal great-aunt since February 2015 when the child was placed in her custody pursuant to a safety plan entered into with DHR. DHR, the state agency charged with overseeing the welfare of dependent children, investigated the matter, determined that the maternal great-aunt had been providing a suitable home environment for the child, and recommended that the child remain in the custody of the maternal great-aunt.

Given those circumstances, this court can sustain the judgment of the juvenile court only if the evidence in the record shows that the best interests of the child would be served by removing the child from his home of the last four years and placing him in the custody of the father. See M.F. v. W.W., 144 So.3d 366, 369 (Ala. Civ. App. 2013) ("Before custody of a child can be awarded to a parent with whom the child ... has never resided or with whom the child has never developed a [parent-child] relationship, evidence must be adduced from which the trial court can determine whether such an award is in the child's best interest."). However, the record contains no evidence showing how the change of custody would benefit the child. In its judgment, the juvenile court found that the father's extensive criminal history and marijuana usage did not disqualify the father from gaining custody of the child, and the juvenile court expressed its belief that the father had reformed his lifestyle; those findings do not, however, equate to a determination that the best interests of the child would be served by his being placed into the custody of the father.

It appears from the statements made by the juvenile court and the tenor of its judgment that the juvenile court emphasized the biological connection between the father and the child and the legal rights of the father to custody of the child as established in the 2010 judgment entered by the Texas court rather than focusing on the welfare and the best interests of the child as § 12-15-314 requires. We could find no evidence in the record that would support a finding that placement with the father will somehow advance the child's best interests. We therefore hold that the juvenile court's finding that an award of custody to the father is in the best interests of the child is " ' "so poorly supported by the evidence as to be plainly and palpably wrong." ' " M.M., 117 So.3d at 383. Accordingly, we reverse the juvenile court's November 13, 2017, judgment to the extent that it awarded custody of the child to the father, and we remand these cases for the juvenile court to enter an award of custody that is consistent with the best interests of the child.

2170223-REVERSED AND REMANDED WITH INSTRUCTIONS.

2170225-REVERSED AND REMANDED WITH INSTRUCTIONS.

2170226-REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      The maternal great-aunt's notice of appeal was held in abeyance pending the disposition of the postjudgment motions. See Rule 4(a)(5), Ala. R. App. P.


author: THOMAS, Judge.

text:
    R.R. and P.W.R. v. CHILTON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2170334
    Court of Civil Appeals of Alabama.
    September 21, 2018
    Jeffrey Bryan Pino of Jim Pino & Associates, P.C., Pelham, for appellants.
    Steve Marshall, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   THOMAS, Judge.

In September 2017, the Chilton County Department of Human Resources ("DHR") filed a petition in the Chilton Juvenile Court ("the juvenile court") seeking to have R.E.R. ("the child") declared dependent. The juvenile court held a shelter-care hearing and, on September 8, 2017, entered a shelter-care order. The juvenile court then set the matter for an adjudicatory hearing, which, after requested continuances were granted, was held on December 7, 2017. In November 2017, R.R. ("the father") and P.W.R. ("the stepmother") moved the juvenile court to "compel" DHR to require the attendance of the child at family counseling in lieu of visitation.

The juvenile court took no testimony and received no documentary evidence at the adjudicatory hearing. On December 12, 2017, the juvenile court entered a judgment declaring the child dependent. The father and the stepmother filed a timely postjudgment motion in which, among other things, they specifically objected to the juvenile court's finding the child dependent without having taken evidence. After that motion was denied, the father and the stepmother filed a timely notice of appeal. On appeal, they present two issues: whether the juvenile court erred in finding the child dependent without having taken any evidence and whether the juvenile court erred by failing to allow them to have visitation with the child based on the child's objection to such visitation.

In its brief on appeal, DHR concedes that the manner in which the juvenile court conducted the proceedings on December 7, 2017, denied the father and the stepmother their rights to due process and that the dependency adjudication must be reversed. As we explained in N.J.D. v. Madison County Department of Human Resources, 110 So.3d 387, 390-91 (Ala. Civ. App. 2012) :

" ' "[A] parent is entitled to due process in proceedings involving the custody of a child." Strain v. Maloy, 83 So.3d 570, 571 (Ala. Civ. App. 2011). In Strain v. Maloy, supra, this court explained:
" ' " 'In dealing with such a delicate and difficult question -- the welfare of a minor child -- due process of law in legal proceedings should be observed. These settled courses of procedure, as established by our law, include due notice, a hearing or opportunity to be heard before a court of competent jurisdiction.'
" ' "
Danford [v. Dupree ], 272 Ala. [517,] 520, 132 So.2d [734,] 735-36 [ (1961) ]. As this court has further explained:
" ' " '[P]rocedural due process contemplates the basic requirements of a fair proceeding including an impartial hearing before a legally constituted court; an opportunity to present evidence and arguments; information regarding the claims of the opposing party; a reasonable opportunity to controvert the opposition's claims; and representation by counsel if it is desired.'
" ' " Crews v. Houston Cnty. Dep't of Pensions & Sec., 358 So.2d 451, 455 (Ala. Civ. App. 1978) (emphasis added)."
" ' 83 So. 3d at 571.' "

N.J.D., 110 So.3d at 390-91 (quoting Gilmore v. Gilmore, 103 So.3d 833, 835 (Ala. Civ. App. 2012) ); see also C.M.A. v. Cullman Cty. Dep't of Human Res., 185 So.3d 1111 (Ala. Civ. App. 2015). Thus, based on the record and on DHR's concession, we conclude that the December 12, 2017, judgment, insofar as it determined that the child was dependent, is devoid of evidentiary support and was entered in a manner inconsistent with the father's and the stepmother's right to due process.

However, DHR does not concede error regarding the juvenile court's refusal to enter an order requiring the child to visit with the father and the stepmother. Instead, DHR asserts that the juvenile court can make any award pertaining to visitation so long as that award is in the best interest of the child, and it contends that certain "evidence" supports the conclusion that visitation is not currently in the best interest of the child. However, because the juvenile court took no evidence, there is no evidentiary support for either a judgment ordering specific visitation or one declining to order visitation. The juvenile court may consider the visitation issue anew when it holds an evidentiary hearing.

Based on the foregoing, the judgment of the juvenile court is reversed, and the cause is remanded for proceedings consistent with this opinion.

In light of the resolution of this appeal, the father's motion to strike certain portions of the record is denied as moot.

REVERSED AND REMANDED.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.


author: THOMPSON, Presiding Judge. MOORE, Judge, dissenting.

text:
    Kathryn Leann SHINNICK v. Brian Joseph SHINNICK
    2170472
    Court of Civil Appeals of Alabama.
    September 21, 2018
    Joan-Marie Sullivan, Huntsville, for appellant.
    C. Claire Porter of The Porter Law Group, P.C., Scottsboro, for appellee.
   THOMPSON, Presiding Judge.

Kathryn Leann Shinnick ("the wife") appeals from a judgment entered by the Jackson Circuit Court ("the trial court") divorcing her from Brian Joseph Shinnick ("the husband"). The judgment, which incorporated the agreement the parties had reached after negotiations and announced in open court, divided the marital property, awarded the wife alimony in gross, and waived periodic alimony for both parties, among other things.

On appeal, the wife maintains that the trial court did not possess subject-matter jurisdiction but that, if this court determines that the trial court did possess subject-matter jurisdiction, the trial court erred in preventing her from presenting evidence regarding her mental state and the circumstances that existed at the time the parties' agreement was reached. The record indicates the following evidence and information relevant to the issues on appeal. The husband filed a divorce complaint in the trial court on May 1, 2017. In the complaint, he alleged that he was a resident of Massachusetts but that the wife was a resident of Jackson County, Alabama, and had been for more than six months immediately before the complaint was filed. The husband also submitted a sworn "affidavit of residence" with the complaint, in which he stated that he had personal knowledge that the wife "has resided within the State of Alabama for more than six (6) months prior to the date the Complaint in this matter was filed."

On June 7, 2017, the husband filed an application for an entry of default. The next day, the husband filed a motion for a default judgment on the ground that the wife had failed to answer or otherwise submit a pleading in response to the divorce complaint. On June 14, 2017, the wife filed a motion to dismiss the divorce action pursuant to Rule 12(b), Ala. R. Civ. P. Specifically, the wife claimed that the trial court did not have subject-matter jurisdiction over the action or personal jurisdiction over her. In the motion, the wife stated that she was a legal resident of Massachusetts, that she and the husband resided together in Massachusetts, and that they had insufficient contacts with Alabama to confer jurisdiction on this state.

In support of her motion to dismiss, the wife submitted an affidavit stating that, as of June 19, 2017, she was "currently living in Nashville, Tennessee," but that she was a legal resident of Massachusetts. She acknowledged that she had owned a house in Jefferson County since 2006, and that she and the husband had jointly owned the house since 2008, but she stated that neither of them had lived there since they married in Georgia in 2009. At the time the wife executed the affidavit, she said, renters occupied the house.

The wife explained that the husband and she had lived in Massachusetts throughout the marriage "until our difficulties in May 2016." She testified that she took a vacation to California in June 2016, then, on June 29, 2016, she drove from the parties' house in Massachusetts to her parents' home in Vincent, located in Shelby County. In an e-mail message dated June 25, 2016, the wife told the husband that she had "decided to spend the summer in Alabama." The e-mail message indicated that her intent was to return to the marital residence in Massachusetts in August. However, "[b]y the time August [2016] arrived," the wife said, the husband "was so angry with me that he asked me not to return to our home and continued to ask me to not return to our home" as late as April 2017. During that time, the wife said, she traveled to Europe and then spent time in Nashville; Atlanta, Georgia; Knoxville, Tennessee; Florida; and Oxford, Mississippi, often visiting with family and friends.

Additionally, the wife explained, she continued to hold a Massachusetts driver's license and to pay taxes in Massachusetts; she was enrolled in graduate school in Massachusetts; she did not have a lease or utilities in her name in Alabama; and she did not pay taxes in Alabama. On the other hand, the record includes an e-mail message dated December 13, 2016, that included a Blue Cross and Blue Shield of Alabama statement for the wife; the wife's resume, which indicated an address in Pisgah, which is in Jackson County; a number of bank statements addressed to both parties at the Pisgah address; and a case-action summary connected to a traffic citation the wife received in Etowah County on February 1, 2017, showing the same Pisgah address for the wife. The wife explained that the citation, which was for driving without a driver's license, was dismissed after she explained to the judge presiding over that matter that she had a valid Massachusetts driver's license and that she had not lived in Alabama for three consecutive months.

On August 8, 2017, the trial court held a hearing on the wife's motion to dismiss for lack of subject-matter jurisdiction and personal jurisdiction. The day before that hearing, the wife filed a complaint for a divorce in Massachusetts. The wife was not present at the August 8, 2017, hearing in Alabama, although she was represented by an attorney at that hearing. The wife's attorney told the trial court that the wife did not dispute having lived both in and outside of Alabama since the parties' separation in May or June 2016, but that she had never made a permanent change of her residence. At the time of the hearing, the attorney said, the wife was living in the marital residence in Massachusetts. The wife challenged the trial court's jurisdiction on the ground that the wife had not been an Alabama resident for six months before the husband filed the divorce complaint on May 1, 2017. She further argued that she never intended to make Alabama her permanent residence. The State Judicial Information System indicates that on August 9, 2017, the trial court entered an order denying the wife's motion to dismiss and scheduled the trial for October 3, 2017.

On September 22, 2017, the wife filed a "restated motion to dismiss for lack of jurisdiction." On October 3, 2017, the date the trial was scheduled to begin, the wife asked to be heard on the issue of jurisdiction again. After hearing the arguments of the parties, the trial court again denied the wife's motion to dismiss. The trial court then gave the parties an opportunity to resolve the issues between them. Later that same day, the parties announced in open court that they had reached an agreement, which was then read into the record. The following colloquy was then held:

"THE COURT [To the wife's attorney]: So is your client agreeing that this Court has jurisdiction over the parties and the marital issues?
"MR. EUSTACE [The wife's attorney]: As much as she can agree to such legally, Judge, yes.
"THE COURT: Is she agreeing that she has lived in Jackson County, Alabama, prior to her recent move back to Massachusetts?
"MR. EUSTACE: She agrees that she did live here for some time prior to her move.
"THE COURT: Either she agrees that I have jurisdiction to enter this order, or she doesn't; now that's just the way it is.
"MR. EUSTACE: She does, Your Honor.
"THE COURT: Is that true?
"MRS. SHINNICK: Yes, ma'am."

The trial court then confirmed that what had been read into the record was what had been agreed to by both parties. On November 9, 2017, the trial court entered a judgment divorcing the parties and incorporating that agreement.

On December 11, 2017, the wife filed a motion to vacate the final judgment and to dismiss the case. In her postjudgment motion, the wife again asserted that the trial court did not have subject-matter jurisdiction over this matter because, she said, she had not been an Alabama resident in the six months preceding the filing of the divorce complaint. She claimed that the husband had been forum shopping when he filed the action in Alabama and asserted that she could have received a significantly better outcome had the action been determined in Massachusetts. Additionally, the wife argued for the first time that she suffered from a mental illness and that that illness is what prohibited her from appearing at the August 8, 2017, hearing on her motion to dismiss. She contended that, on October 3, 2017, the day of the trial, she "was placed in a position of having to either settle the case under materially less favorable law than that of her domicile state of Massachusetts or to conduct a trial for which she was unable to prepare due to her mental condition and the principle of forum non conveniens."

On January 10, 2018, the trial court held a hearing on the wife's postjudgment motion.

That hearing will be discussed in more detail later in this opinion. On January 11, 2018, the trial court denied the wife's postjudgment motion. The wife then filed a timely appeal to this court.

On appeal, the wife once again argues that the trial court did not have subject-matter jurisdiction to consider this matter. The wife appears to argue that, because neither the husband nor the wife had lived in Alabama for six months before the husband's filing of the complaint on May 1, 2017, the trial court failed to obtain subject-matter jurisdiction in this case.

Pursuant to § 30-2-4, Ala. Code 1975,

"[c]omplaints for divorce may be filed in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when the separation occurred, or if the defendant is a nonresident, then in the circuit court of the county in which the other party to the marriage resides."

The parties do not dispute that the husband is not an Alabama resident. However, whether the wife was an Alabama resident living in Jackson County at the time the complaint was filed was an issue of fact for the trial court to decide.

" 'Where evidence is presented ore tenus, this court will not disturb a lower court's judgment unless that judgment is palpably wrong, without supporting evidence, or manifestly unjust.' Seymour v. Seymour, 597 So.2d 1368, 1369 (Ala. Civ. App. 1992). The major factual issue in this case involves the residency of the parties.
" 'The determination of whether the parties resided in [a certain county] is a factual question resolved by the trial court after a hearing of the evidence by the court. Such a finding is given a presumption of correctness and will not be disturbed by this court unless we can say it was plainly and palpably wrong.'
" Ex parte Greene, 527 So.2d 1320, 1321 (Ala. Civ. App. 1988)."

Skieff v. Cole-Skieff, 884 So.2d 880, 883 (Ala. Civ. App. 2003).

Initially, the wife challenged the husband's contention that she was an Alabama resident at the time the complaint was filed, and the evidence regarding this issue was disputed.

" ' " Section 30-2-5, Ala. Code 1975, discusses the residency requirements for a plaintiff in a divorce action when the defendant is a nonresident of Alabama and states:
" ' " 'When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint, which must be alleged in the complaint and proved.'
" ' "If the residency requirements are not met, then a trial court does not have jurisdiction over the marital res and any judgment entered is void. Seymour v. Seymour, 597 So.2d 1368 (Ala. Civ. App. 1992) ; Chavis v. Chavis, 394 So.2d 54 (Ala. Civ. App. 1981). For the purposes of § 30-2-5, residence is the same thing as domicile. Seymour v. Seymour, supra. 'Domicile is defined as residence at a particular place accompanied by an intention to stay there permanently, or for an indefinite length of time.' Nora v. Nora, 494 So.2d 16, 17 (Ala. 1986). A person's domicile continues until a new one is acquired. Id."
" ' Fuller v. Fuller, 991 So.2d 285, 290 (Ala. Civ. App. 2008). "[T]he burden is on the party who asserts a change of domicile to prove it." Richardson v. Richardson, 258 Ala. 423, 425, 63 So.2d 364, 366 (1953).'
" Ex parte Ferguson, 15 So.3d 520, 521-22 (Ala. Civ. App. 2008). Furthermore, we note that '[w]hen the trial court hears oral testimony regarding residence under § 30-2-5, "the judgment of the court is presumed correct and will not be set aside on appeal unless so contrary to the great weight of the evidence as to be palpably wrong." ' Livermore v. Livermore, 822 So.2d 437, 441 (Ala. Civ. App. 2001) (quoting Chavis v. Chavis, 394 So.2d 54, 55 (Ala. Civ. App. 1981) ). 'However, there is no presumption of correctness in the trial court's application of law to the facts.' Robinson v. Robinson, 795 So.2d 729, 733 (Ala. Civ. App. 2001) (citing Gaston v. Ames, 514 So.2d 877 (Ala. 1987) )."

Hamilton v. Hamilton, 12 So.3d 1236, 1237-38 (Ala. Civ. App. 2009) (emphasis added); see also Alsaikhan v. Alakel, 173 So.3d 925, 927-28 (Ala. Civ. App. 2015).

We agree with the general proposition of law set forth in the dissenting opinion that parties cannot agree to confer subject-matter jurisdiction in a divorce action. 272 So.3d at 1130 (Moore, J., dissenting). We disagree, however, that that is what occurred in this case. The dissenting opinion bolsters its contention that the evidence did not support the determination that the wife intended to stay in Alabama, relying on Weith v. Weith, 263 So.3d 715, 720 (Ala. Civ. App. 2018), stating:

"In Weith, this court concluded that, although the wife in that case had lived in Alabama for the requisite six-month period, she had made the decision to remain in Alabama less than a month before she filed her complaint for a divorce. 263 So.3d at 720. Therefore, this court concluded that the trial court lacked subject-matter jurisdiction to divorce the parties in that case."

272 So.3d at 1131.

The facts in Weith are distinguishable from those in this case, however. In that case, the parties' marital residence was their primary residence in Missouri. In September 2014, they purchased a "secondary home" in Baldwin County. 263 So.3d at 717. The wife in that case testified that they intended to remain in Missouri during the summer and stay in Alabama during the winter. She also acknowledged that she had obtained an Alabama driver's license "to procure less costly insurance and to pay lower taxes" on the Baldwin County house. 263 So.3d at 717. While the parties were preparing the Baldwin County house, the wife would live alternate months in Alabama and Missouri. In early April 2015, while the wife was in Alabama, the husband demanded that she return to Missouri despite their plans to come to Alabama later in the month to celebrate their anniversary. However, he then called her back and told her not to come back to Missouri because he was going to see an attorney about obtaining a divorce. The wife said that she returned to Missouri and discovered that the locks on the marital residence had been changed. At that point, the wife said, she decided to file for a divorce before the husband could and "became residency [sic] at that time." 263 So.3d at 717. She filed a complaint for a divorce on April 21, 2015, in the Baldwin Circuit Court, and she testified that she had been a Baldwin County resident for six months before filing the complaint. Id.

This court held that the undisputed evidence indicated that the wife in Weith had intended the Baldwin County house to be a vacation home only and that, up until she decided to file for a divorce in Alabama in April 2015, she had been living in Alabama and Missouri in alternate months. This court determined that the evidence did not support a finding that she had resided in Alabama for the six months preceding the filing of the complaint, even though the wife said that she had been a resident for those six months. 263 So.3d at 720.

In the instant case the evidence as to the wife's residency and her intent to remain in Alabama was in dispute. The record indicates that the wife moved several of her belongings to Alabama on June 29, 2016, when she left the marital residence and traveled to her parents' home in Shelby County. In August 2016, when the husband asked the wife not to return to the marital residence in Massachusetts, the wife made the decision to remain in Alabama, although she did travel to other southeastern states to visit with family and friends. She received her mail at the Pisgah address. When she received a traffic citation in Etowah County, she told the arresting officer she lived in Pisgah. At one point before December 2016, the wife apparently obtained insurance through Blue Cross and Blue Shield of Alabama, as evidenced by the statement mailed to her Pisgah address. At the time the husband filed the divorce complaint on May 1, 2017, the wife had resided in Alabama for ten months, and, in August 2016, she had expressed to the husband her intention to remain in Alabama for an unspecified amount of time. Based on the evidence, the trial court reasonably could have determined that the wife intended to remain in Alabama " ' " 'for an indefinite length of time.' " ' " Hamilton, 12 So.3d at 1238. This is especially true in light of the wife's declaration to the trial court on October 3, 2017, five months after the complaint was filed, that she had lived in Jackson County before her "recent move back to Massachusetts."

Although the wife did not tell the trial court that she had intended to stay in Alabama permanently, we note that the wife had resided in Alabama for more than a year before she returned to Massachusetts. The trial court reasonably could have determined that the wife did not make the decision to return to Massachusetts until after she was served with the divorce complaint and believed that Massachusetts law would be more favorable to her than Alabama law.

Our standard of review dictates that,

" '[w]hen evidence is presented ore tenus, it is the duty of the trial court, which had the opportunity to observe the witnesses and their demeanors, and not the appellate court, to make credibility determinations and to weigh the evidence presented. Blackman v. Gray Rider Truck Lines, Inc., 716 So.2d 698, 700 (Ala. Civ. App. 1998). The role of the appellate court is not to reweigh the evidence but to affirm the judgment of the trial court if its findings are reasonably supported by the evidence and the correct legal conclusions have been drawn therefrom. Ex parte Trinity Indus., 680 So.2d [262] at 268-69 [ (Ala. 1996) ] ; Fryfogle v. Springhill Mem'l Hosp., Inc., 742 So.2d 1255 (Ala. Civ. App. 1998), aff'd, 742 So.2d 1258 (Ala. 1999). The "appellate court must view the facts in the light most favorable to the findings of the trial court." Ex parte Professional Bus. Owners Ass'n Workers' Comp. Fund, 867 So.2d 1099, 1102 (Ala. 2003).'
" Ex parte Hayes, 70 So.3d 1211, 1215 (Ala. 2011)."

Ex parte Caldwell, 104 So.3d 901, 904 (Ala. 2012).

We find the words of our supreme court in Hilley v. Hilley, 275 Ala. 617, 620, 157 So.2d 215, 219 (1963), especially apt in this situation:

"The issue of domicile or residence was bitterly contested when the cause was tried on July 24-25, 1961. The evidence on this issue was voluminous and extensive, presenting in our judgment a question of intent on the part of complainant, which is usually a controlling consideration. Caheen v. Caheen, 233 Ala. 494, 172 So. 618(4) [ (1937) ]. By granting the divorce the trial court determined from the conflicting evidence that complainant was domiciled in Alabama at the time suit was filed.
"While we are not any too sanguine from reading the text of the evidence, word for word, that the trial court correctly decided this issue of domicile, we conclude that we should observe our long established rule that where the evidence is taken ore tenus before the court, as here, his findings will not be disturbed on appeal unless clearly and palpably wrong. Mitchell v. Kinney, 242 Ala. 196, 5 So.2d 788(1) [ (1942) ]. We cannot say that such finding was palpably wrong."

Although we may have reached a different conclusion, applying our standard of review to the record before us, we cannot say that the trial court's determination that the wife was a resident of Jackson County at the time the divorce complaint was filed was "palpably wrong, without supporting evidence, or manifestly unjust." Seymour v. Seymour, 597 So.2d 1368, 1369 (Ala. Civ. App. 1992). Accordingly, we refuse to hold the trial court in error as to this issue.

The wife also argues that the trial court erred when, during a hearing on her postjudgment motion to vacate the divorce judgment, it prohibited her from presenting evidence as to her mental state at the time she entered into the settlement agreement with the husband. In her postjudgment motion, the wife asserted for the first time that she had been "diagnosed with a mental illness in January 2017 and the nature of this illness materially affected her judgment and decision making both before and during the various divorce filings." She further claimed that her mental state "played a significant role in her failure to appear in court for the hearing on August 8, 2017," when the issue of jurisdiction was first argued. We note that the wife's mental condition was not mentioned as a reason for the wife's failure to appear when her attorney was asked at the outset of the hearing about why the wife was not present.

The trial court held a hearing on the wife's postjudgment motion. At that hearing, the wife's attorney told the trial court that the wife had subpoenaed and received her certified mental-health records and wanted to introduce them into evidence. The trial court stated that it was not taking any new evidence. When the wife's attorney at the postjudgment hearing, who had not been present at the previous hearings, asserted that, in reaching the settlement, the husband had "taken advantage of" the wife, the trial judge said:

"Well, I'm going to have to except your argument there, because I was presiding over the case that day. And [the wife] had adequate representation. The parties were allowed to negotiate a settlement. The Court required the parties to come before the Court and announce the settlement once it was reached after extended negotiations. And at no time did I observe any behavior from [the wife] as you're trying to describe to this Court today."

The trial court also noted that the wife had been represented by an attorney at each of the previous hearings and that at no time had she presented evidence of mental-health issues. The trial court said that, at those previous hearings, the wife had the opportunity to present the evidence that was being offered at the hearing on the postjudgment motion, but had elected not to do so.

In her brief on appeal, the wife relies on Claybrook v. Claybrook, 56 So.3d 652 (Ala. Civ. App. 2010), and Dunn v. Dunn, 124 So.3d 148 (Ala. Civ. App. 2013), to support her contention that she was entitled to an evidentiary hearing on the issue of her mental health. In Claybrook, this court reversed the judgment of the trial court, which incorporated the settlement agreement reached in that case, on the ground that the trial court had not afforded the wife in that case an opportunity to present evidence in support of her defenses to the enforceability of the settlement agreement. 56 So.3d at 658.

Before the divorce judgment was entered in Claybrook, the wife had filed a motion repudiating the agreement, alleging coercion, threats of domestic violence, and pointing out that she had not been represented by an attorney during negotiations and the execution of the agreement. In entering the judgment, the trial court did not mention the wife's repudiation of the agreement. The wife then filed a motion to alter, amend, or vacate the judgment, pointing out to the trial court that the judgment had been entered without the court's considering her motion to repudiate and that, instead, the court had relied entirely on statements she had made before that motion was made. Id.

In reversing the trial court's judgment, we explained:

" 'Agreements between parties to divorce actions are generally binding, and such agreements will not be set aside, "except for fraud, collusion, accident, surprise or some other ground of this nature." ' Grantham v. Grantham, 656 So.2d 900, 901 (Ala. Civ. App. 1995) (quoting Brocato v. Brocato, 332 So.2d 722, 724 (Ala. 1976) ). See also Wilcoxen v. Wilcoxen, 907 So.2d 447, 449 (Ala. Civ. App. 2005) ('A trial court has the discretionary authority to permit a party to repudiate an agreement in contemplation of divorce if that party is able to show "good cause." ... "Good cause includes 'fraud, collusion, accident, surprise or some other ground of this nature.' " ' (quoting Culver v. Culver, 651 So.2d 21, 23 (Ala. Civ. App. 1994), quoting in turn Borders v. Borders, 597 So.2d 1373, 1375 (Ala. Civ. App. 1992) ) )."

56 So.3d at 654.

We concluded that the trial court had abused its discretion in failing to grant the wife's postjudgment motion so that the defenses she had asserted as to the enforceability of the settlement agreement could be considered at an evidentiary hearing. Id. at 658.

In Dunn, this court again considered the issue of whether the trial court in that case had abused its discretion by denying the wife's postjudgment motion to set aside a divorce judgment incorporating an agreement of the parties without taking testimony at the postjudgment hearing. As was the case in Claybrook, the wife in Dunn was not represented by an attorney when the agreement was negotiated. 124 So.3d at 148-49. After the judgment was entered, the wife filed a postjudgment motion alleging that, at the time the settlement agreement was reached, "she suffered from various medical problems, was unable to afford an attorney, and was 'intimidated and coerced by [the husband and the husband]'s attorney.' " Id. at 149. The wife also alleged that she was unaware of her ability to request alimony or an interest in the marital residence. Id.

Once again, this court explained:

"Generally, allegations of fraud, duress, or coercion, if proven, may be grounds to set aside a divorce judgment. See Barganier v. Barganier, 669 So.2d 933, 938 (Ala. Civ. App. 1995) (citing Kunkel v. Kunkel, 547 So.2d 555, 556 (Ala. Civ. App. 1989) ) ('A separation agreement incorporated into a divorce judgment must be fair, reasonable, and just, and free from fraud, duress, or other coercion.'). However,
" ' "[a]n agreement reached in settlement of litigation is as binding on the parties as any other contract.... Moreover, there is a strong policy of law favoring compromises and settlements of litigation, especially in suits involving families, since the honor and peace of the family is often at stake."
" ' Porter v. Porter, 441 So.2d 921, 923 (Ala. Civ. App. 1983). However, in the context of a divorce judgment, our courts have held that the trial court is not bound by the parties' agreement but may accept the agreement or reject the agreement, in whole or in part. See, e.g., Porter, 441 So.2d at 924 ; see also Mullins v. Mullins, 770 So.2d 624 (Ala. Civ. App. 2000) ; Kohn v. Kohn, 52 Ala. App. 636, 296 So.2d 725 (Civ. App.1974).'
" Allen v. Allen, 903 So.2d 835, 840 (Ala. Civ. App. 2004)."

Dunn, 124 So.3d at 149.

In Dunn, the wife argued on appeal that the circuit court had erred by refusing to hear her testimony at the postjudgment hearing regarding her allegations of fraud, duress, or coercion occurring on the day the settlement was reached and the judgment was entered. We agreed and reversed the order denying the postjudgment motion, stating that the circuit court had to hold an evidentiary hearing to "independently determine whether the evidence ... establishes" the wife's defenses, which would require the judgment to be set aside. Id. at 151.

A court has discretion to admit new evidence in a postjudgment hearing. State v. $223,405.86, 203 So.3d 816, 826 (Ala. 2016) ; Ex parte Johnson, 673 So.2d 410, 412 (Ala. 1994). In her appellate brief, the wife in this case does not contend that the agreement between the parties was reached as a result of fraud, coercion, or duress. Her focus is on her contention that the judgment incorporating the settlement agreement the parties had reached was inequitable. She argues that the evidence she wished to present would show that she was " 'mentally compromised' during the pendency of this case which affected her ability to participate in the proceedings" that resulted in the judgment, including the first hearing on jurisdiction, when the trial court denied her motion to dismiss based on lack of jurisdiction.

The gist of the wife's argument on appeal is that the judgment was inequitable because, she claims, under Massachusetts law she would have been entitled to a better outcome than under Alabama law. Therefore, she says, she could have negotiated a substantially better settlement if the action had been litigated in Massachusetts. She also appears to assert that, had she been present at the August 8, 2017, hearing on the issue of jurisdiction, she would have prevailed and the Alabama court would have had to have dismissed the action for lack of jurisdiction. However, the wife claimed for the first time in her postjudgment motion that her mental condition prevented her from appearing at that hearing.

Assuming for purposes of this opinion that the wife could have had a better outcome under Massachusetts law than under Alabama law, a difference in state divorce laws is not a basis for finding that a settlement or judgment based on the less favorable law is inequitable. It also is not a valid basis under Alabama law for determining that a settlement was the result of coercion, duress, or fraud. The wife was represented by an attorney at each of the hearings before the trial court and throughout the negotiation of the settlement agreement. Although the wife said that she had been diagnosed with a mental illness before the complaint in this action was filed, neither her attorney nor she ever brought that to the attention of the trial court until she filed her postjudgment motion. Moreover, as the trial court pointed out, it had the opportunity to observe the wife on the day of the settlement negotiations and during the hearing when the agreement was read into the record. The trial court did not see signs of mental illness on the wife's part at that time, and the wife's demeanor on that day cannot be recreated in a postjudgment hearing. Accordingly, we conclude that the trial court did not abuse its discretion in prohibiting the wife from presenting evidence at the postjudgment hearing regarding her mental illness.

The wife has failed to demonstrate that the trial court erred or abused its discretion in entering the divorce judgment. Therefore, the judgment is affirmed. The wife's request for an attorney fee on appeal is denied.

AFFIRMED.

Pittman, Thomas, and Donaldson, JJ., concur.

Moore, J., dissents, with writing.

MOORE, Judge, dissenting.

I respectfully dissent from the main opinion's affirmance of the judgment entered by the Jackson Circuit Court ("the trial court") divorcing Brian Joseph Shinnick ("the husband") and Kathryn Leann Shinnick ("the wife"). For the reasons explained below, I conclude that the trial court lacked subject-matter jurisdiction over the divorce action, and, therefore, I would dismiss the appeal with instructions to the trial court to set aside its void judgment.

Facts and Procedural History

On May 1, 2017, the husband filed in the trial court a complaint seeking a divorce from the wife. The husband attached an affidavit averring that he was "a resident of Waltham, Massachusetts," and that he had "personal knowledge that the [wife] ha[d] resided within the State of Alabama for more than six (6) months prior to the date the Complaint in this matter was filed."

On June 14, 2017, the wife filed a motion to dismiss the complaint for lack of subject-matter jurisdiction. She also filed an affidavit in support of her motion, stating, in pertinent part:

"I am currently living in Nashville, Tennessee, but am a legal resident of Massachusetts. I am not, nor have I ever been a resident of Jackson County, Alabama. The home that is owned by [the husband] and I in Alabama has been owned by me since 2006, and owned by [the husband] and I since 2008. It is occupied by renters and neither of us have lived there since our marriage in 2009.
"[The husband] and I married in the State of Georgia on August 1, 2009. Immediately after our honeymoon we moved to the State of Massachusetts and continued to live there throughout our marriage until our difficulties in May, 2016.
"During the month of June, 2016 I traveled to California for a vacation then returned to our home in Massachusetts. On June 29th, I left our home in Massachusetts and drove to my parents' home in Vincent, Shelby County, Alabama for a visit. At that time, it was my intent to return to our home in Massachusetts in August. By the time August arrived, [the husband] was so angry with me that he asked me not to return to our home and continued to ask me to not return to our home throughout the coming months, including as late as April, 2017.
"During the month of September, I visited and stayed with a friend in Nashville for a couple of weeks. During the month of October, I spent a great deal of time traveling. I stayed at my parents' home in Pisgah, Alabama, but was also in Birmingham, Oxford, Mississippi, and Knoxville, Tennessee. Around this same time my parents were moving to Florida. I returned to Massachusetts around the end of October and in early November, making two trips packing things up in a storage unit. In November I traveled to Europe, and was in Germany and France until after Thanksgiving. After I returned from Europe, for most of December I stayed with a friend in Nashville. The end of December, I left Nashville and went to stay with my parents in Florida for a while. In mid-January, I left my parents' home in Florida and traveled to their home in Jackson County. I was in Nashville for most of the end of March as well and for a couple of weeks in April. I traveled to Florida, Nashville, and Atlanta in the beginning of May. I returned to Nashville on May 17, 2017 and have been here continuously since that time.
"I have a driver's license issued by the State of Massachusetts, I vote in Massachusetts, and I continue to be enrolled in graduate school in Massachusetts. I have signed no lease nor paid any utilities nor had utilities in my name in the State of Alabama since 2009. I have not paid personal nor property taxes in the State of Alabama other than those related to the Birmingham rental home and have taken no action to change my permanent residency. In fact, I received a traffic ticket in February, 2017 in Etowah County, Alabama. The ticket was issued due to my having a Massachusetts driver's license. When I appeared in court in March, 2017, the case was dismissed based upon my argument to the judge that I had not been in Alabama for three consecutive months and was still in fact a resident of the State of Massachusetts."

On August 7, 2017, the husband filed a response to the wife's motion to dismiss, but he did not include any evidence in support thereof.

On August 8, 2017, the trial court held a hearing on the motion to dismiss. The wife did not personally appear, but was represented by counsel. The husband appeared and was represented by counsel. The husband testified that the parties were living in Massachusetts when they began the process of separating. He testified that, in May or June 2016, they moved into separate bedrooms. According to the husband, on June 25, 2016, the wife sent him an e-mail message informing him that she was going to spend the summer in Alabama and stating further: "I am packing up my things to take with me and leaving the rest of my stuff mostly packed so that I can easily come back to get it once I decide where I will live next." The husband testified that, at that time, the wife had "move[d] all her bank statements" to Vincent, Alabama, where the wife's parents were living. According to the husband, the wife's parents sold their house in Vincent in the fall of 2016, and the wife moved to Pisgah, Alabama. He testified that the wife had lived in Pisgah until she moved back to Massachusetts three weeks before the hearing was scheduled on the motion to dismiss, which would have been in July 2017. The husband introduced documentary evidence supporting his testimony, including documents indicating that the wife had used the Pisgah address as her home address on her resume and bank statements; he also introduced a social-media post in which the wife referred to Northeast Alabama as "home."

On August 9, 2017, the trial court entered an order denying the wife's motion to dismiss. On September 22, 2017, the wife filed a verified "Restated Motion to Dismiss for Lack of Jurisdiction." She stated, in pertinent part:

"4. The parties have lived at th[eir] residence [in Massachusetts] continually since shortly after their 2009 marriage in the State of Georgia. The parties have never resided anywhere else. This fact creates a legal presumption that the domicile of the parties is in Massachusetts.
"5. After problems surfaced in the marriage, the wife felt that she could no longer reside with the husband and left to stay with her parents. The wife spoke with the husband about returning to the home in August 2016 but the husband objected and asked the wife not to return. The wife continued to request to return home, even as late as April of 2017. Eventually, both parties were absent from the marital residence for a period [of] time. The husband later vacated the marital residence allowing the wife to feel safe enough to return, which she did. She still resides there today.
"....
"9. The parties pay property taxes on the marital residence in Massachusetts. The only property taxes paid in Alabama are for a house that they rent out to other people in Birmingham. The parties have never lived there as husband and wife.
"10. The parties' vehicle is titled in Massachusetts. They own no vehicles titled in Alabama....
"11. The real property which is alleged by the husband to be the residence of the wife is actually rental property owned by the wife's father located at Gorham's Bluff. The wife's father had no intention of allowing the wife to reside permanently in the Gorham's Bluff property as that causes him a loss of rental income. It does not appear that this information was clearly conveyed to the trial court during the previous hearing. The trial court asked if the parties owned property in Massachusetts and the husband's counsel advised[:] 'They have property in Massachusetts and Alabama.' Transcript August 8, 2017, 7:20-21. Although that is a true statement, it does not clarify that the parties have never resided in or owned the Gorham's Bluff property. The parties have stayed there on occasions when visiting Alabama. The property owned by the parties is rental property located in Birmingham, Alabama and the parties have never lived there while married."

The wife attached several exhibits, including a portion of the parties' 2016 joint income-tax return indicating that certain property in Birmingham owned by the parties had been rented during the entirety of 2016; a statement from "Health Insurance Marketplace," for the period January 1 through December 31, 2016, that was sent to the wife at the address of the marital home in Massachusetts; photographs of the wife's Massachusetts driver's license and vehicle license plate; and a copy of a "2016 Form One, Massachusetts Residents Income Tax Return," which bore both the husband's and the wife's names and specified that the form was for "Full Year Residents Only."

On September 30, 2017, the wife filed an answer to the husband's complaint for a divorce in which she specified that she was not waiving her jurisdictional challenge.

On October 3, 2017, the parties appeared before the trial court for a hearing. The wife's attorney initially argued the restated motion to dismiss and requested that the wife be allowed to testify regarding the jurisdictional issue; the trial court orally denied the motion to dismiss without allowing further testimony. The parties then proceeded to negotiate a settlement agreement. After the settlement agreement was negotiated, the following colloquy took place:

"[THE COURT:] So is your client agreeing that this Court has jurisdiction over the parties and the marital issues?
"[ATTORNEY FOR THE WIFE]: As much as she can agree to such legally, Judge, yes.
"THE COURT: Is she agreeing that she has lived in Jackson County, Alabama prior to her recent move back to Massachusetts?
"[ATTORNEY FOR THE WIFE]: She agrees that she did live here for some time prior to her move.
"THE COURT: Either she agrees that I have jurisdiction to enter this order, or she doesn't; now that's just the way it is.
"[ATTORNEY FOR THE WIFE]: She does, Your Honor.
"THE COURT: Is that true?
"[THE WIFE]: Yes, ma'am."

Thereafter, on November 9, 2017, the trial court entered a judgment divorcing the parties based upon the parties' settlement agreement. On December 11, 2017, the wife filed a motion to vacate the divorce judgment and to dismiss the case; that motion was denied on January 11, 2018. The wife filed her notice of appeal on February 16, 2018.

Discussion

On appeal, the wife first argues that the trial court lacked subject-matter jurisdiction to enter the divorce judgment in this case.

Initially, I point out that a party to an action cannot confer subject-matter jurisdiction by agreement; thus, the statements by the wife and the wife's attorney indicating that the wife agreed that the trial court had jurisdiction to enter a judgment on the parties' settlement agreement does not settle the issue of jurisdiction. See, e.g., Weith v. Weith, 263 So.3d 715, 718 (Ala. Civ. App. 2018) (holding that jurisdiction to enter a divorce judgment cannot be conferred by agreement); Orban v. Orban, 123 So.3d 525, 527-28 (Ala. Civ. App. 2012) (holding that parties' agreement that the Alabama trial court had jurisdiction was insufficient to confer jurisdiction). Furthermore, the husband's "mere statement ... that [the wife] is a resident of the State of Alabama and has been such 'for the length of time required by law' is insufficient to meet the jurisdictional requirement that the [wife] be domiciled in this state, the [husband] not being shown to be domiciled here." Volin v. Volin, 272 Ala. 85, 87, 128 So.2d 490, 491 (1961).

Recently, in Weith, this court set forth the law concerning the residency requirements for subject-matter jurisdiction in a divorce action:

" Section 30-2-5[, Ala. Code 1975,] provides that, '[w]hen the defendant [in a divorce action] is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint, which must be alleged in the complaint and proved.' 'If the residency requirements set forth in § 30-2-5 are not met, the trial court lacks jurisdiction over the divorce action.' Alsaikhan v. Alakel, 173 So.3d 925, 927 (Ala. Civ. App. 2015). 'The parties cannot by agreement confer jurisdiction.' Hilley v. Hilley, 275 Ala. 617, 619, 157 So.2d 215, 218 (1963).
" 'It is well settled that, for the purposes of § 30-2-5, residence is equivalent to domicile. Ex parte Ferguson, 15 So.3d 520, 522 (Ala. Civ. App. 2008) ; Skieff v. Cole-Skieff, 884 So.2d 880, 883 (Ala. Civ. App. 2003) ; Livermore v. Livermore, 822 So.2d 437, 442 (Ala. Civ. App. 2001) ; and Webster v. Webster, 517 So.2d 5, 7 (Ala. Civ. App. 1987).
" ' " ' "Domicile is defined as residence at a particular place accompanied by an intention to stay there permanently, or for an indefinite length of time." Nora v. Nora, 494 So.2d 16, 17 (Ala. 1986). A person's domicile continues until a new one is acquired. Id.' "
" ' Ex parte Ferguson, 15 So.3d at 522 (quoting Fuller v. Fuller, 991 So.2d 285, 290 (Ala. Civ. App. 2008) ). Black's Law Dictionary 592 (10th ed. 2014) defines "domicile" as "[t]he place at which a person has been physically present and that the person regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere." This court has noted that when a person lives in one location, his or her intent to return to another location is of primary importance in determining the issue of the person's domicile. Livermore v. Livermore, 822 So.2d at 442 (citing Andrews v. Andrews, 697 So.2d 54, 56 (Ala. Civ. App. 1997), and Jacobs v. Ryals, 401 So.2d 776, 778 (Ala. 1981) ).
" 'With regard to principles governing the concept of domicile, our supreme court has stated:
" ' " '[A] domicile, once acquired, is presumed to exist until a new one has been gained "facto et animo" ... And in order to displace the former, original domicile by the acquisition of one of choice, actual residence and intent to remain at the new one must concur. "Domicile of choice is entirely a question of residence and intention, or, as it is frequently put, of factum and animus." ...
" ' " 'A change of domicile cannot be inferred from an absence, temporary in character, and attended with the requisite intention to return. To the fact of residence in the new locality there must be the added element of the animus manendi before it can be said that the former domicile has been abandoned. The intention to return is usually of controlling importance in the determination of the whole question....
" ' " '... As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact....
" ' " 'One who asserts a change of domicile has the burden of establishing it.... And "where facts are conflicting, the presumption is strongly in favor of an original, or former domicile, as against an acquired one," etc. ...' "
" ' Jacobs v. Ryals, 401 So.2d at 778 (quoting Ex parte Weissinger, 247 Ala. 113, 117, 22 So.2d 510, 513-14 (1945) ).'
" Alsaikhan, 173 So.3d at 928."

263 So.3d at 718-19.

In Weith, this court concluded that, although the wife, who was the plaintiff in that divorce action, had lived in Alabama for the requisite six-month period, she had made the decision to remain in Alabama less than a month before she filed her complaint for a divorce. 263 So.3d at 720. Therefore, this court concluded that the trial court had lacked subject-matter jurisdiction to divorce the parties in that case. This court discussed and distinguished Hamilton v. Hamilton, 12 So.3d 1236 (Ala. Civ. App. 2009), in which this court considered whether the wife in that case, who had relocated with her daughter to Alabama from Mississippi approximately 11 months before she had filed for a divorce in Alabama, was domiciled in Alabama for purposes of § 30-2-5. The evidence in Hamilton indicated that the wife in that case had testified that, "since she and the daughter had relocated in June 2007, she had enrolled the daughter in school, she had been issued an Alabama driver's license, she had been issued an Alabama motor-vehicle tag, she had registered to vote, and she had purchased a retail clothing business." 12 So.3d at 1238. This court concluded that the wife had presented "substantial evidence indicating that she intended to stay in Alabama permanently or, at the very least, for an indefinite length of time" such that the Alabama court had jurisdiction to divorce the parties. 12 So.3d at 1239.

In the present case, in order to satisfy the jurisdictional requirements of § 30-2-5, the wife, who was the defendant in this divorce action, must have been a resident of Alabama at the time the husband, who was the plaintiff in this divorce action and was undisputedly a nonresident of Alabama, filed the divorce action. The evidence in this case indicated that, after the parties began having marital difficulties, the wife had traveled to Vincent, Alabama, to spend the summer with her parents. After her parents moved from Vincent to Florida in the fall of 2016, the wife began staying in her parents' rental home in Alabama, as well as continuing to travel and spend time in various parts of Alabama and in other states, for weeks at the time; she also traveled out of the country for an extended period. She stayed in her parents' rental house and traveled extensively until the husband vacated the marital home and she moved back into that home in July 2017. The wife maintained a Massachusetts driver's license, she was registered to vote in Massachusetts, and she maintained her vehicle registration in Massachusetts. She was enrolled in graduate school in Massachusetts and had not signed a lease for a residence in Alabama or maintained any utilities in her name in Alabama. There was no evidence indicating that the wife owned any property in Alabama other than the rental house that the parties owned but had not lived in since they married in 2009. Additionally, the parties filed a "2016 Form One, Massachusetts Residents Income Tax Return," which bore both the husband's and the wife's names and specified that the form was for "Full Year Residents Only." Unlike the wife in Hamilton, the wife in the present case took no steps to make her move to Alabama, which was initially intended to be temporary, a permanent change of residence. Indeed, by the time of the initial hearing on the motion to dismiss, the wife had returned to Massachusetts to live. Moreover, the wife's use of an Alabama address on her resume and her bank accounts was insufficient to overcome the presumption against a change of domicile. See, e.g., Jacobs v. Ryals, 401 So.2d 776, 778 (Ala. 1981) (holding that a use of an Antigo address was insufficient to show a change of domicile from Loxley to Antigo). Therefore, I conclude that, with regard to whether the wife obtained a domicile in Alabama, this case is like Weith in that the "intent to remain" portion of the domicile inquiry was not met and that Hamilton is distinguishable from the present case.

As noted previously, the wife's Massachusetts domicile was "presumed to exist until a new one [was] gained 'facto et animo' " and could be replaced only by an "actual residence and intent to remain" in Alabama. Weith, 263 So.3d at 720. Although the wife in the present case did reside in Alabama for a period of time, there is insufficient evidence indicating that she intended to remain here instead of returning to her former domicile of Massachusetts at the time the complaint was filed. Weith, 263 So.3d at 718-19 ; see also Alsaikhan v. Alakel, 173 So.3d 925, 928 (Ala. Civ. App. 2015) (quoting Jacobs v. Ryals, 401 So.2d at 778 ) (noting that " ' "intention to return is usually of controlling importance in the determination of the whole question [of domicile]" ' ").

"A judgment rendered without proof of [the residency requirement of § 30-2-5 ] is void for want of subject matter jurisdiction." Chavis v. Chavis, 394 So.2d 54, 55 (Ala. Civ. App. 1981) ; see also Weith, 263 So.3d at 720. "Because a void judgment will not support an appeal, [I would] dismiss the appeal, albeit with instructions to the trial court to set aside its void divorce judgment." Weith, 263 So.3d at 720. Because the trial court lacked subject-matter jurisdiction over this action, I would pretermit discussion of the remaining arguments raised on appeal.

      The husband originally filed a complaint for a divorce in Massachusetts on June 27, 2016, but that complaint was dismissed when the wife was not served within 90 days of its filing.

      "A motion to ... vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment." Rule 59(e), Ala. R. Civ. P. The 30th day following the entry of the trial court's judgment on November 9, 2017, was Saturday, December 9, 2017. Thus the wife's motion filed on Monday, December 11, 2017, was timely. Rule 6(e), Ala. R. Civ. P.