Venue for Post-Divorce Litigation

The Alabama Court of Civil Appeals has provided a textbook illustration applying the Alabama statute dealing with venue, in Hodge v. Steinwinder, Case No. 2031060 (Ala. Civ. App. February 4, 2005). The parties had been divorced in Coffee County in 1993. After the divorce, the mother and children moved twice, first to Montgomery County in March 1998 and then to Jefferson County in August 2001. The mother filed to reevaluate child support and to enforce a child support arrearage in April 2001. The Montgomery County Circuit Court entered judgment awarding the Mother child support arrearage and more than doubling the amount of monthly child support.

In August of 2003, the father filed in Coffee County Circuit Court a petition to modify the divorce judgment seeking physical custody of the children. The mother moved to dismiss for improper venue, arguing that she and the child had lived in Montgomery County for three years (although by the time the new petition was filed she had moved to Jefferson County) and that the Montgomery County Circuit Court was the most recent court to have ruled in the case. The Coffee County Circuit Court transferred the case to Montgomery County, and both the Coffee County Court and the Montgomery County Court refused the father’s petition to reconsider.

There was a great deal of activity involving an obviously high-conflict case, but that activity is not relevant here, because the Court of Appeals ruled that venue was not proper in Montgomery County. The Court of Appeals quoted the statute (Ala. Code § 30-3-5, Ala. Code 1975) verbatim, so I will too:

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

The Court of Appeals applied the plain language of the statute that venue lay in the county were the DIVORCE judgment was rendered unless there was another county where the custodial parent and the child had lived for three consecutive years immediately preceding the filing of the petition. Here, because the mother and child no longer lived in Montgomery County, there was no longer any county where the custodial parent and child had lived for three consecutive years immediately preceding the filing of the petition to modify. And because there was no longer any alternative venue, the appropriate county for venue was the one in which the divorce decree was rendered — Coffee County.

The Court of Appeals noted but rejected the mother’s argument that the father had not objected to venue in Montgomery County in the first post-judgment case and had in fact participated in the Montgomery litigation.

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