Family Law Venue

The mother and father were divorced in 2002 in Elmore County. The mother was granted custody of the parties’ minor child and the father was granted visitation. The mother subsequently moved to Mississippi and the father moved to Mobile in 2006. In 2010, the mother filed in the Mobile Circuit Court a motion seeking to suspend the father’s visitation, requesting supervised visitation and psychological counseling for the father and child. The father filed a response and did not object to venue. The father subsequently filed in the Elmore Circuit Court a motion to modify custody and seeking to hold the mother in contempt for not following the visitation schedule.

The mother filed a motion in the Elmore Circuit Court to dismiss the father’s proceeding on the ground that venue was not proper because she had commenced a post-divorce proceeding in Elmore County. The court denied the mother’s motion. She petitioned the Court of Civil Appeals for a writ of mandamus. That court held that because the mother had not resided in Alabama for three consecutive years, Ala. Code 1975, § 30-3-5, dictated that the proper venue was the Elmore Circuit Court, the original court entering the divorce decree.

The Court also held that Ala. Code 1975, § 6-5-440, did not bar the father’s proceeding, because doing so would allow one party to race to the courthouse and file a post-divorce proceeding in an improper venue. The Supreme Court reversed the judgment of the Court of Civil Appeals and remanded the cause for that Court to further consider § 6-5-440. On remand, the Court of Civil Appeals concluded that the mother had waived the affirmative defense set out in § 6-5-440 before the trial court denied her motions. The Supreme Court denied the mother’s petition for certiorari and the Elmore Circuit Court ordered reinstatement of the father’s visitation, held the mother in contempt, and imposed a five-day jail sentence. The mother appealed. The mother petitioned the Supreme Court for a writ of certiorari. Reversed.