The question is one of “venue” (pronounced VEN you). The black-letter law on venue for a divorce comes from Ala. Code § 30-2-4, which provides that a 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 [that is, residing outside Alabama], then in the circuit court of the county in which the other party to the marriage resides.”
The question where a party “resides” is one of fact, and that’s where today’s case comes in. The wife in Ex parte Hudson, Case No. 2160558 (Ala. Civ. App. June 23, 2017) filed for a legal separation in Baldwin County, Alabama, where she lived. The case doesn’t make it clear, but at the time of the filing, the husband was apparently staying in Baldwin County. The husband moved to transfer venue to Montgomery County, where he said the parties had lived together until their separation, where he had owned a house and still owned a business, where he was registered to vote, and where he intended to maintain his residence by soon purchasing another house.
The wife argued that the last place the parties had lived together before their separation was Baldwin County. She said that when they lived there together, they spent about 90% of their time in Baldwin County.
The trial court granted the husband’s motion and transferred venue to Montgomery County. The wife petitioned for a writ of mandamus instructing the trial court to vacate its order.
The appeals court said the burden of proving improper venue is on the party objecting to it (the husband) but that the trial court had ruled in the husband’s favor. This meant that the petition for writ of mandamus would not be granted without a showing of clear error on the part of the trial court.
The appeals court said that in Alabama, “residence” equates to domicile, which embraces the dual concepts of (1) the fact of residence, and (2) the intention to remain.
“We conclude that the trial court reasonably could have found that the separation occurred in Baldwin County but that the parties, or at least the husband, who is the defendant in the action below, resided in Montgomery County at the time the parties separated. This is true even though he had just sold the Montgomery County house. The trial court could have believed that the parties, or at least the husband, went to the house [in Baldwin County] simply to have a place to stay until a new house could be purchased in Montgomery County. There is no evidence in the record to show that the husband ever intended to remain in Baldwin County. Under our standard of review, the trial court’s determination is given a presumption of correctness.”
The appeals court denied the wife’s petition. So the divorce moved to Montgomery County.