Rel: June 26, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2025-2026
CL-2026-0240
Ex parte Jennifer Henderson
PETITION FOR WRIT OF MANDAMUS
(In re: Michael Brandon Henderson
v.
Jennifer Henderson)
(Mobile Circuit Court: DR-25-900330)
FRIDY, Judge.
Jennifer Henderson ("the mother") petitions this court for a writ of
mandamus directing the Mobile Circuit Court to dismiss a divorce action
commenced against her by Michael Brandon Henderson ("the father") for
CL-2026-0240
lack of subject matter jurisdiction and/or personal jurisdiction. Because
the circuit court denied the mother's motions to dismiss before the father
proved the facts demonstrating jurisdiction, we grant the mother's
petition in part and issue a writ of mandamus directing the circuit court
to vacate its orders denying the mother's motions to dismiss, and we
direct the circuit court to conduct further proceedings to determine its
jurisdiction consistent with this opinion.
Background
On April 2, 2025, the father initiated a divorce action in the circuit
court ("the Alabama action"). According to the complaint, the parties
were married in February 2010, and three children were born of the
marriage: M.H. in 2013, Mi.H. in 2015, and S.H. in 2017. The father
alleged that he was an Alabama resident and that he had been an
Alabama resident for six months preceding the filing of his complaint. He
also alleged that the mother was residing in Hawaii at that time. It is
undisputed that M.H., Mi.H., and S.H. ("the children") resided with the
mother at all relevant times.
According to the mother's mandamus petition, she initiated a
divorce action in Texas on June 2, 2025 ("the Texas action"). On July 3,
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2025, and July 5, 2025, the mother attempted to serve process on the
father, but she was not successful. Accordingly, the Texas district court
permitted her to complete service of process on the father by attaching
the citation and complaint in the Texas action to the door of the father's
residence in Alabama.
On July 14, 2025, the father filed a motion in the Alabama action
for permission to serve process on the mother by publication. In that
motion, the father asserted that he had not been able to successfully serve
process on the mother in Hawaii. He further asserted that he believed
the mother was residing in Texas but that he had no way of verifying her
residence. The circuit court granted the father's motion the next day.
Thereafter, the father published notice of the Alabama action in
newspapers in Mobile County; in Denton County, Texas; and in Collin
County, Texas.
On August 8, 2025, the Texas district court entered a default final
decree of divorce in the Texas action. On December 15, 2025, the father
filed a petition for a bill of review in the Texas district court, requesting
that the Texas district court set aside the default decree and set the
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matter for a new trial. It does not appear from the materials before us
that the Texas district court ruled on the father's motion.
On January 9, 2026, the father filed a motion in the Alabama action
for the circuit court to hold a judicial conference with the Texas district
court under the Alabama Uniform Child Custody Jurisdiction and
Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, to
determine which court had jurisdiction over the parties. The circuit court
granted that motion. On February 2, 2026, the circuit court held a
conference with the Texas district court. On February 11, 2026, the Texas
district court entered an order dismissing the Texas action. The same
day, the circuit court entered an order finding that it had jurisdiction over
the parties and the children, and it set the matter for a trial to be held on
April 2, 2026. On February 16, 2026, the father attempted service of
process on the mother but was again unsuccessful.
On March 18, 2026, the father moved to compel discovery in the
Alabama action. The same day, the mother entered a limited appearance
and filed multiple motions to dismiss the Alabama action. First, the
mother moved to dismiss the Alabama action for lack of subject matter
jurisdiction under § 30-2-5, Ala. Code 1975, because, she argued, she was
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not an Alabama resident when the father filed his complaint and because,
she said, the father was not an Alabama resident during the six months
before the father filed his complaint. Second, the mother moved to
dismiss the Alabama action for lack of subject matter jurisdiction under
the UCCJEA because, according to her, Texas was the children's home
state because the children had resided there since 2017 and because
Texas courts had already exercised jurisdiction over the children. Third,
the mother moved to dismiss the Alabama action for lack of personal
jurisdiction because, she maintained, she had not consented to personal
jurisdiction and did not have minimum contacts with Alabama to permit
the exercise of personal jurisdiction by Alabama courts. The mother also
moved to quash the father's service of process by publication. In that
motion, the mother asserted that service by publication was improper
because the father had maintained contact with her both before and after
the date of publication and because the father had failed to demonstrate
that he could not ascertain her residence with reasonable diligence.
Finally, the mother filed a response to the father's motion to compel
discovery, arguing that his motion was premature because of her pending
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motions to dismiss and that she had not been properly served with the
father's discovery requests.
The next day, the circuit court denied the mother's motions to
dismiss and to quash the father's service by publication. The circuit court
also granted the father's motion to compel discovery and ordered the
mother to respond to the father's discovery requests. The mother then
moved for an extension of time to respond to the father's discovery
requests. On March 23, 2026, the circuit court denied that motion.
On March 27, 2026, the mother filed her petition for a writ of
mandamus in this court. On March 31, 2026, this court stayed further
proceedings in the circuit court.
Standard of Review
" ' "Mandamus is a drastic and extraordinary writ, to be
issued only where there is (1) a clear legal right in the
petitioner to the order sought; (2) an imperative duty upon the
respondent to perform, accompanied by a refusal to do so; (3)
the lack of another adequate remedy; and (4) properly invoked
jurisdiction of the court." ' "
Ex parte A.M.P., 997 So. 2d 1008, 1014 (Ala. 2008) (quoting Ex parte
Perfection Siding, Inc., 882 So. 2d 307, 309-10 (Ala. 2003), quoting in turn
Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995)).
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Analysis
In her petition, the mother contends that she is entitled to a writ of
mandamus directing the circuit court to dismiss the Alabama action for
lack of both subject matter jurisdiction and personal jurisdiction. We
address the mother's arguments regarding subject matter jurisdiction
first.
1. Subject matter jurisdiction
The mother contends that the circuit court lacked subject matter
jurisdiction over the Alabama action for two reasons. First, she contends
that the circuit court lacked subject matter jurisdiction under § 30-2-5,
Ala. Code 1975, because, according to her, the father was not an Alabama
resident during the six months immediately preceding the initiation of
the Alabama action. Second, she contends that the circuit court lacked
subject matter jurisdiction under the UCCJEA. We consider each
argument in turn.
a. § 30-2-5
Section 30-2-5 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
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the complaint, which must be alleged in the complaint and proved."
(Emphasis added.) This court has held that, "[i]f 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).
It is undisputed that the mother is not a resident of Alabama.
Accordingly, the father had to comply with the requirements of § 30-2-5.
The father satisfied § 30-2-5's pleading requirement by alleging that he
"is a bona fide resident citizen of Mobile County, Alabama[,] and has been
such for more than six (6) months preceding the filing of this complaint."
However, § 30-2-5 also requires the father to prove his residency in
Alabama during the six months preceding the filing of his complaint.
Ordinarily, a plaintiff is not required to prove his or her allegations until
trial. However, because the mother challenged the circuit court's subject
matter jurisdiction, the father's burden to prove his residency in order to
demonstrate jurisdiction arose when she filed her motion to dismiss
under § 30-2-5. Our supreme court has held:
" 'The burden of establishing the existence of subjectmatter jurisdiction falls on the party invoking that
jurisdiction.' Crutcher v. Williams, 12 So. 3d 631, 635 (Ala.
2008). Once a defendant has moved to dismiss a case for lack
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CL-2026-0240
of subject-matter jurisdiction, the plaintiff is then required to
establish the ' " 'factual predicates of jurisdiction by a
preponderance of the evidence.' " ' Ex parte Safeway Ins. Co.
of Alabama, Inc., 990 So. 2d 344, 349 (Ala. 2008) (citations
omitted)."
Ex parte Mobile Cnty. Bd. of Equalization, 369 So. 3d 1038, 1042 (Ala.
2022) (plurality opinion).
In Ex parte Safeway Insurance Company of Alabama, Inc., 990 So.
2d 344 (Ala. 2008), our supreme court differentiated between facial
challenges to subject matter jurisdiction, in which the challenging party
seeks to demonstrate that the trial court lacks subject matter jurisdiction
from the face of the pleadings, and factual challenges, in which the
challenging party "disputes the factual allegations in the complaint that
form the basis for a court's subject matter jurisdiction." 990 So. 2d at 350.
Here, the mother challenged the father's allegation that he had resided
in Alabama during the six months preceding the commencement of the
Alabama action. Accordingly, the mother's motion to dismiss based on
her contention that the father did not reside in Alabama during that sixmonth period was a factual challenge to the circuit court's subject matter
jurisdiction.
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Unlike in a facial challenge, in which the trial court must accept
the allegations of the complaint as true, a trial court considering a factual
challenge to its subject matter jurisdiction must consider "evidence
beyond the face of the complaint." Id. As the supreme court explained:
" '[A] court deciding a Rule 12(b)(1)[, Ala. R. Civ. P.,] motion
asserting a factual challenge "must go beyond the pleadings
and resolve any disputed issues of fact the resolution of which
is necessary to a ruling upon the motion to dismiss." [Phoenix
Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C.
Cir. 2000).] In such situations, "the plaintiff's jurisdictional
averments are entitled to no presumptive weight; the court
must address the merits of the jurisdictional claim by
resolving the factual disputes between the parties." Erby[ v.
United States], 424 F. Supp. 2d [180,] 181 [(D.D.C. 2006)]
(internal quotations omitted); see also Mortensen v. First Fed.
Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. [1977]) (holding
that a court ruling on a factual challenge to its jurisdiction is
not required to accept the plaintiff's factual allegations as
true, but rather "is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case ... and the
existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional
claims").' "
Id. (quoting Lindsey v. United States, 448 F. Supp. 2d 37, 42-43 (D.D.C.
2006)).
Here, the mother moved to dismiss the Alabama action for lack of
subject matter jurisdiction before the father submitted any evidence. The
only facts before the circuit court were the allegations in the father's
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CL-2026-0240
complaint and other factual assertions in the father's motion for a
UCCJEA conference, none of which were evidence.1 Thus, to defeat the
mother's motion to dismiss under § 30-2-5, the father needed to submit
in response to her motion evidence establishing his Alabama residency
by a preponderance of the evidence. In the absence of such evidence, the
mother would ordinarily be entitled to dismissal of the Alabama action.
As our supreme court has noted:
"When a defendant seeks from [an appellate court] a
writ of mandamus directing a trial court to dismiss an action
for lack of subject-matter jurisdiction, the defendant
establishes a clear legal right to dismissal if the plaintiff has
failed to prove subject-matter jurisdiction below. Ex parte
Safeway [Ins. Co. of Alabama, Inc.], 990 So. 2d [344,] 352
[(Ala. 2008)]."
1We acknowledge that the father verified his complaint and that a
verified complaint can be treated as an affidavit in some contexts. Ex
parte Quinlan, 922 So. 2d 914, 917 (Ala. 2005). Here, however, the
father's conclusory allegation that he was an Alabama resident for more
than six months preceding the filing of his complaint does not appear
sufficient to meet his burden under Ex parte Mobile County Board of
Equalization, 369 So. 3d 1038 (Ala. 2022) (plurality opinion), and Ex
parte Safeway Insurance Company of Alabama, Inc., 990 So. 2d 344 (Ala.
2008), to prove his residency for purposes of establishing the circuit
court's subject matter jurisdiction by a preponderance of the evidence.
Because, under Safeway, a trial court adjudicating a factual challenge to
subject matter jurisdiction must consider "evidence beyond the face of the
complaint," 990 So. 2d at 350, the circuit court here could not have relied
on the conclusory allegations of the father's verified complaint as
evidence of his residency.
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Ex parte Mobile Cnty. Bd. of Equalization, 369 So. 3d at 1042 n.4
(plurality opinion).
Here, however, it does not appear that the father ever had an
opportunity to submit evidence proving his Alabama residency. In other
contexts, this court has held that, when the plaintiff's burden to present
evidence in support of the allegations in his or her complaint is triggered
by a defendant's motion (such as a summary-judgment motion), due
process requires that the plaintiff be given a reasonable opportunity to
present that evidence. For instance, in Reese v. Bolling, 290 So. 3d 821
(Ala. Civ. App. 2019), this court reversed a judgment dismissing an action
because the trial court considered evidence that the defendant had
attached to the motion to dismiss without notifying the plaintiff of its
intent to convert the motion into one for a summary judgment. This court
reasoned that the plaintiff was entitled to an opportunity to present
evidence in support of his claims before the trial court ruled on the
defendant's motion.
Like the converted summary-judgment motion in Reese, the
mother's motion to dismiss under § 30-2-5 triggered the father's burden
to present evidence of his Alabama residency. However, rather than
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permit the father to present such evidence, the circuit court denied the
mother's motion to dismiss the day after it was filed. Thus, the father did
not have a reasonable opportunity to submit any evidence establishing
his Alabama residency before the circuit court ruled on the mother's
motion to dismiss.2
In her reply brief, the mother contends that the father's argument
that he did not have an opportunity to submit evidence in response to her
motions to dismiss was not credible. In support of that argument, the
mother points to the facts that the father initiated and actively
participated in the Alabama action. She also points to the fact that he
2Nearly a month after the mother filed her mandamus petition and
this court entered an order staying the proceedings below, the father filed
a motion for limited relief from this court's stay order to allow him to file
an affidavit responding to the mother's motions to dismiss, and he
attached that affidavit to his petition. In that affidavit, the father
testified that he resided in Alabama during the six months preceding the
filing of his complaint in the Alabama action. However, because that
affidavit was not before the circuit court at the time the circuit court ruled
on the mother's motion to dismiss, we cannot consider it on review by
mandamus. See Ex parte Alabama Dep't of Labor, 214 So. 3d 356, 360
(Ala. Civ. App. 2015) (refusing to consider affidavits pertaining to an
issue implicating subject matter jurisdiction because those affidavits
were not before the trial court at the time of its ruling). See also Ex parte
Cincinnati Ins. Co., 51 So. 3d 298, 310 (Ala. 2010) ("[I]n a mandamus
proceeding, [an appellate court] will not consider evidence not presented
to the trial court."). Accordingly, we deny the father's motion for relief
from the stay entered by this court.
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filed a discovery motion on the same date that she filed her motions to
dismiss. It should go without saying that the father's general
participation in the Alabama action does not preclude him from arguing
that he could not reasonably respond to the mother's motions to dismiss
within one day.
Because it was error for the circuit court to deny the mother's
motion to dismiss under § 30-2-5 in the absence of evidence of the father's
Alabama residency, the mother has a clear legal right to a writ of
mandamus vacating the order denying her motion to dismiss. However,
because the father did not have a reasonable opportunity to submit the
evidence required by § 30-2-5, due process requires that he be afforded a
reasonable opportunity to submit such evidence. Thus, the mother does
not demonstrate that she has a clear legal right to dismissal of the
Alabama action under § 30-2-5 at this stage of the proceedings.
b. The UCCJEA
Next, the mother contends that the circuit court lacked subject
matter jurisdiction over the Alabama action under the UCCJEA. She
challenges the circuit court's jurisdiction under § 30-3B-201, § 30-3B-206,
and § 30-3B-110, Ala. Code 1975. We address each argument in turn.
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i. § 30-3B-201
Section 30-3B-201 of the UCCJEA provides:
"(a) Except as otherwise provided in Section 30-3B204,[Ala. Code 1975,][3] a court of this state has jurisdiction to
make an initial child custody determination only if:
"(1) This state is the home state of the child
on the date of the commencement of the
proceeding, or was the home state of the child
within six months before the commencement of the
proceeding and the child is absent from this state
but a parent or person acting as a parent continues
to live in this state;
"(2) A court of another state does not have
jurisdiction under subdivision (1), or a court of the
home state of the child has declined to exercise
jurisdiction on the ground that this state is the
more appropriate forum under Section 30-3B-207
or 30-3B-208, [Ala. Code 1975,][4] and:
"a. The child and the child's
parents, or the child and at least one
parent or a person acting as a parent,
have a significant connection with this
3Section 30-3B-204, Ala. Code 1975, provides for temporary
emergency jurisdiction under limited circumstances that are not
applicable here.
4Section 30-3B-207, Ala. Code 1975, permits a court to decline
jurisdiction if it determines that it is an inconvenient forum and that a
court of another state is a more appropriate forum. Section 30-3B-208,
Ala. Code 1975, requires a court to decline jurisdiction if it determines
that a person seeking to invoke its jurisdiction has engaged in
unjustifiable conduct.
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state other than mere physical
presence; and
"b. Substantial evidence is
available in this state concerning the
child's care, protection, training, and
personal relationships;
"(3) All courts having jurisdiction under
subdivision (1) or (2) have declined to exercise
jurisdiction on the ground that a court of this state
is the more appropriate forum to determine the
custody of the child under Section 30-3B-207 or 30-3B-208; or
"(4) No court of any other state would have
jurisdiction under the criteria specified in
subdivision (1), (2), or (3)."
The UCCJEA defines "home state" as
"[t]he state in which a child lived with a parent or a person
acting as a parent for at least six consecutive months
immediately before the commencement of a child custody
proceeding. … A period of temporary absence of the child or
any of the mentioned persons is part of the period."
§ 30-3B-102(7), Ala. Code 1975.
In her petition, the mother contends that Texas, not Alabama, has
jurisdiction under the UCCJEA because Texas was the children's home
state under Texas's version of § 30-3B-201(a)(1). In support of her
argument, the mother points to evidence indicating that the children
were enrolled as full-time students in a Texas school between September
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2024 and December 2024, which is about the time that the father
contends the mother took the children to Hawaii. The mother also
contends that the children's time in Hawaii was a temporary absence
that did not affect the children's residency in Texas,5 and she submitted
evidence indicating that her time in Hawaii was for a temporary work
assignment. For instance, the text exchanges the mother submitted
indicate that, on February 26, 2025, the father texted the mother: "Wen
[sic] with [sic] the kids be back[?] [I]ts [sic] been too long[;] I wanna [sic]
see my babies[.]" The mother responded: "When I get released from this
deployment." (Emphasis added.) On May 25, 2025, in response to another
inquiry from the father, the mother responded: "I understand you miss
the kids. As I've mentioned before, they will return home with me after
my work assignment ends, and I will reach out to discuss a visitation
schedule." (Emphasis added.) Further, the father's bill of review that he
filed in the Texas action stated that, in April 2025, the mother "was
working in Hawaii." Because the mother's evidence indicates an intent
5Although the mother makes this argument for the first time in her
reply brief, "arguments related to a court's subject-matter jurisdiction
may be raised at any time." N.Z. v. J.C., 296 So. 3d 869, 872 (Ala. Civ.
App. 2019).
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that she would return home after her work assignment was over, that
evidence could support the conclusion that the children's presence in
Hawaii was a temporary absence. See Ex parte Butcher, 297 So. 3d 442
(Ala. Civ. App. 2019) (holding that mother and child's time in Ohio during
father's six-month deployment to Africa was a temporary absence and
that Alabama remained the child's home state). Thus, the mother
submitted evidence indicating that the children were either living in
Texas or temporarily absent in Hawaii during the six months preceding
the initiation of the Alabama action.
Accordingly, as noted above, the mother's motion to dismiss
challenging the circuit court's subject matter jurisdiction under the
UCCJEA triggered the father's burden to demonstrate that Texas was
not the children's home state. Ex parte Mobile Cnty. Bd. of Equalization,
369 So. 3d at 1042 (plurality opinion). However, because the circuit court
denied the mother's motion the day after it was filed, the father did not
have a reasonable opportunity to submit evidence demonstrating that
Texas was not the children's home state.
In his brief, the father argues that Texas was not the children's
home state and that the circuit court had jurisdiction under § 30-3B18
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201(a)(2) and (a)(4). However, other than his argument that the children
lived in Hawaii for four of the six months preceding the filing of his
complaint, which, as noted above, appears to have been a temporary
absence, the father points to nothing that undermines the mother's
evidence that Texas was the children's home state. Further, the evidence
to which the father points in support of his arguments that jurisdiction
is proper in Alabama in the absence of a home state under § 30-3B201(a)(2) and (a)(4) is his affidavit that he filed after this court entered
its order staying the proceedings below. As noted above, we cannot
consider that affidavit in reviewing the circuit court's denial of the
mother's motion to dismiss because it was not before the circuit court at
that time.
The father also argues that, regardless of whether Texas is the
children's home state, the circuit court had subject matter jurisdiction
under § 30-3B-201(a)(3) because the Texas district court dismissed the
Texas action after concluding that it did not have jurisdiction over the
parties.6 Under that Code section, an Alabama court may exercise
6Because the father primarily relies on the transcript of the
UCCJEA conference and the Texas district court's order dismissing the
Texas action for lack of subject matter jurisdiction in his argument that
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jurisdiction to make an initial child-custody determination if a court of
the child's home state "ha[s] declined to exercise jurisdiction on the
ground that a court of this state is the more appropriate forum to
determine the custody of the child under [Ala. Code 1975, §§] 30-3B-207
or 30-3B-208." As noted above, § 30-3B-207, Ala. Code 1975, permits a
court to decline jurisdiction if it determines that it is an inconvenient
forum and that a court of another state is a more appropriate forum.
Section 30-3B-208, Ala. Code 1975, requires a court to decline jurisdiction
if it determines that a person seeking to invoke its jurisdiction has
engaged in unjustifiable conduct. The father argues that the Texas
district court could have declined jurisdiction under either section of the
UCCJEA.
First, the father contends that the Texas district court declined
jurisdiction because it determined that it was an inconvenient forum and
that the circuit court was a more appropriate forum under § 30-3B-207.
However, the father's argument is not supported by the transcript of the
the circuit court had subject matter jurisdiction under the UCCJEA, and
because that transcript and the Texas district court's order was available
to the circuit court at the time it ruled on the mother's motion to dismiss,
this issue does not involve the father's failure or lack of opportunity to
present evidence in response to the mother's motion to dismiss.
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UCCJEA conference or the Texas district court's order dismissing the
Texas action for lack of subject matter jurisdiction. During that
conference, the Texas district court told the circuit court: "And I think
probably the, you know, premier contacts with any jurisdiction are your
jurisdiction. So I believe you have the honor, sir, of keeping this case."
The Texas district court's statement that the "premier contacts" were
with Alabama does not satisfy § 30-3B-207's requirement that the court
of the home state determine that it is an inconvenient forum. Similarly,
in its order dismissing the Texas action, the Texas district court simply
stated that it "does not have jurisdiction over these parties." Nothing in
that order indicates that the Texas district court determined that it was
an inconvenient forum. Accordingly, the father has not demonstrated
that the circuit court had jurisdiction under § 30-3B-201(a)(3) because
the Texas district court could have declined jurisdiction under the Texas
counterpart of § 30-3B-207.7
7The father relies on an order entered by the Texas district court on
April 2, 2026, vacating an ex parte temporary restraining order that it
had entered and dismissing the mother's application for a temporary
restraining order. In that order, the Texas district court found that
Alabama was a more convenient forum. However, that order cannot serve
as a basis for the circuit court's denial of the mother's motion to dismiss
for lack of jurisdiction under the UCCJEA because that order was
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Second, the father argues that the Texas district court could have
concluded that the mother's conduct in concealing the children from him
was unjustified. However, § 30-3B-208 requires a court to decline
jurisdiction if that court "has jurisdiction … because a person seeking to
invoke its jurisdiction has engaged in unjustifiable conduct…."
(Emphasis added.) As noted above, it appears that the Texas district
court had jurisdiction to make an initial child-custody determination
under the UCCJEA because it was the children's home state at the time
the father commenced the Alabama action. The father does not
demonstrate that Texas became the children's home state because of any
unjustifiable conduct on the mother's part. Even if the father's allegation
that the mother unjustifiably concealed the children's location from him
is true, that conduct had nothing to do with Texas allegedly becoming the
children's home state. Further, nothing in the transcript of the UCCJEA
conference or the Texas district court's order declining jurisdiction
indicates that it determined that it had jurisdiction because the mother
entered after the circuit court denied the mother's motion. As noted
above, on mandamus review, we will not consider evidence that was not
before the circuit court. Ex parte Cincinnati Ins. Co., 51 So. 3d 298, 310
(Ala. 2010).
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had engaged in unjustifiable conduct. Accordingly, the father does not
demonstrate that the circuit court had jurisdiction under § 30-3B201(a)(3) because the Texas district court could have declined jurisdiction
under the Texas counterpart of § 30-3B-208.
In summary, the father has not demonstrated that the circuit court
had jurisdiction under § 30-3B-201(a)(3) because he failed to demonstrate
that the Texas district court declined jurisdiction under either § 30-3B207 or § 30-3B-208. Thus, the father has failed to demonstrate that the
Texas district court's dismissal of the Texas action is dispositive.8
Thus, at this stage of the proceedings, the father has not satisfied
his burden to establish subject matter jurisdiction under the UCCJEA.
Accordingly, under Ex parte Mobile County Board of Equalization
(plurality opinion), the mother has a clear legal right to a writ of
8During the pendency of this petition, the mother moved to submit
limited supplemental materials, including the Texas district court's
February 11, 2026, order vacating its default judgment in the Texas
action. In that motion, the mother argues that the Texas district court's
order was void because, according to her, it was entered "well beyond the
expiration of the [Texas district court's] plenary power." We cannot
consider her argument because any challenge to the Texas district court's
order is outside the scope of this court's original and appellate
jurisdiction. See Harper v. Green, [Ms. CL-2025-0433, Oct. 24, 2025] ___
So. 3d ___, ___ n.1 (Ala. Civ. App. 2025). Accordingly, we deny the
mother's motion.
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mandamus directing the circuit court to vacate its order denying the
mother's motion to dismiss. Nevertheless, because the father never had
a reasonable opportunity to present evidence demonstrating that the
circuit court had subject matter jurisdiction under § 30-3B-201(a)(2) or
(a)(4), the mother is not entitled to a writ of mandamus directing the
circuit court to dismiss the Alabama action for lack of subject matter
jurisdiction.
ii. § 30-3B-206
The mother also contends that the circuit court lacked subject
matter jurisdiction under § 30-3B-206 because the Texas district court
exercised jurisdiction and entered orders concerning the children. The
mother's argument fails on its face.
Section § 30-3B-206 provides, in relevant part:
"(a) Except as otherwise provided in Section 30-3B-204,
[Ala. Code 1975,] a court of this state may not exercise its
jurisdiction under this article [i.e., Article 2 of the UCCJEA]
if, at the time of the commencement of the proceeding, a
proceeding concerning the custody of the child has been
commenced in a court of another state having jurisdiction
substantially in conformity with [the UCCJEA], unless the
proceeding has been terminated or is stayed by the court of
the other state because a court of this state is a more
convenient forum under Section 30-3B-207[, Ala. Code 1975]."
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The relevant time for determining a trial court's jurisdiction under
§ 30-3B-206 is the time of the commencement of the proceeding. Here,
the time for determining whether the circuit court had jurisdiction under
that Code section is April 2, 2025, when the father commenced the
Alabama action. The mother does not identify any action of the Texas
district court exercising jurisdiction or entering orders concerning the
parties until June 2, 2025, when the mother commenced the Texas
action.9 Instead, she points to a temporary restraining order entered by
the Texas district court on March 19, 2026. However, as noted above, that
order was entered almost a year after the father commenced the Alabama
action. Because the mother does not demonstrate that the Texas district
court had exercised jurisdiction when the father commenced the Alabama
action, her argument that the circuit court lacked jurisdiction under § 30-3B-206 fails.
9Although the parties had previously initiated a divorce action in
Texas in 2024, the Texas district court dismissed that action in December
2024 for failure to prosecute. Because that proceeding was terminated
before the father commenced the Alabama action, that proceeding does
not preclude the circuit court from exercising jurisdiction under § 30-3B206, Ala. Code 1975.
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iii. § 30-3B-110
Finally, the mother challenges the circuit court's determination
that it had subject matter jurisdiction based on its UCCJEA conference
with the Texas district court.10 The mother's argument appears to be
aimed both at the circuit court's denial of her motion to dismiss for lack
of subject matter jurisdiction under the UCCJEA and the circuit court's
February 11, 2026, order determining that it had jurisdiction and setting
the case for trial.
The mother contends that the UCCJEA conference did not comply
with the UCCJEA's requirements governing communications between
courts. The UCCJEA provides:
"(a) A court of this state may communicate with a court
in another state concerning a proceeding arising under [the
UCCJEA].
"(b) The court may allow the parties to participate in the
communication. If the parties are not able to participate in the
communication, they must be given the opportunity to present
facts and legal arguments before a decision on jurisdiction is
made.
10As noted above, to the extent that the mother challenges the
Texas district court's determination that it lacked subject matter
jurisdiction, any challenge to that decision is outside the scope of this
court's original and appellate jurisdiction. See Harper v. Green, [Ms. CL2025-0433, Oct. 24, 2025] ___ So. 3d ___, ___ n.1 (Ala. Civ. App. 2025).
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"(c) Communication between courts on schedules,
calendars, court records, and similar matters may occur
without informing the parties. A record need not be made of
the communication.
"(d) Except as otherwise provided in subsection (c), a
record must be made of a communication under this section.
The parties must be informed promptly of the communication
and granted access to the record.
"(e) For the purposes of this section, 'record' means
information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in
perceivable form."
§ 30-3B-110 (emphasis added).
Here, the mother contends that, because she did not participate in
the communication between the circuit court and the Texas district court,
she was entitled to an opportunity to present facts and legal arguments
before any decision on jurisdiction was made under subsection (b) of § 30-3B-110. She contends that, because she did not have such an opportunity,
the circuit court's decision to exercise jurisdiction was void.
However, the mother's argument that she had no opportunity to
present facts and legal argument before the circuit court made its
decision on jurisdiction is premised on her argument that she was never
properly served. As explained below, the mother was properly served
with process by publication. Further, the father's motion for the UCCJEA
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conference included a certification that it was served on the mother.
Accordingly, the mother had at least constructive notice of the UCCJEA
conference before it occurred. Further, the circuit court's February 11,
2026, order determining that it had jurisdiction indicated that the
father's counsel was present for the UCCJEA conference. It appears that
the mother also could have been present had she chosen to be. Further,
even if the parties' presence at the UCCJEA conference would not have
been a sufficient opportunity for the mother to present facts and legal
argument, over a week transpired between the UCCJEA conference and
the circuit court's decision on jurisdiction. The mother had an
opportunity to present facts and legal argument in a motion to dismiss
based on lack of jurisdiction during that time, but she did not take that
opportunity.
Accordingly, the mother has not demonstrated that she is entitled
to a writ of mandamus directing the circuit court to vacate its February
11, 2026, order determining that it had jurisdiction or to dismiss the
Alabama action for lack of subject matter jurisdiction under § 30-3B-110.
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2. Personal jurisdiction
Next, the mother challenges the circuit court's personal jurisdiction
over her on the ground that service by publication was improper because
the father remained in contact with her throughout the relevant period
and knew her personal contact information. The mother points to an email that the father sent her on October 22, 2024, and a series of text
messages between her and the father sent between December 18, 2024,
and September 12, 2025, that she contends demonstrate that the father
knew her e-mail address and telephone number. She also contends that
the father knew her mailing address, which she does not dispute was a
post-office box.
The mother's argument assumes that, because the father had her
personal contact information, he could have successfully served her
without resorting to service by publication. However, none of the
information that the mother contends the father knew would have been
sufficient for him to determine her location or properly effect service of
process. Rule 4(i), Ala. R. Civ. P., permits service of process by three
methods, each of which requires knowledge of the defendant's location or
the location of his or her residence: (1) delivery by a process server to the
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defendant personally or to the defendant's residence; (2) delivery by
certified mail; and (3) delivery by commercial carrier.
The mother does not identify any rule permitting service of process
by telephone, text message, e-mail, or delivery to a post-office box.
Further, she does not cite any authority supporting her contention that
the father's knowledge of her personal contact information precluded him
from resorting to service by publication even if he was not able to
determine her residence with reasonable diligence. Accordingly, the
mother's argument fails to comply with Rule 21(a)(1)(F), Ala. R. App. P.
Accordingly, we refuse to consider that argument. Ex parte Showers, 812
So. 2d 277, 281 (Ala. 2001).
In her reply brief, the mother argues that the materials do not
support a finding that she avoided service of process. Rule 4.3(c), Ala. R.
Civ. P., provides, in relevant part, that "[t]he mere fact of failure of
service is not sufficient evidence of avoidance, and the affidavit required
in subdivision (d)(1) of this rule must aver specific facts of avoidance."
Rule 4.3(d)(1) further provides that a plaintiff seeking service by
publication must file an affidavit averring facts showing that the
defendant avoided service of process. See Lovell v. Costigan, 185 So. 3d
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CL-2026-0240
1130 (Ala. Civ. App. 2015) (holding that service by publication was
improper because the plaintiff's affidavit did not set forth facts showing
avoidance of service). However, the mother did not raise this argument
in her petition. Arguments pertaining to personal jurisdiction, unlike
arguments pertaining to subject matter jurisdiction, are subject to waiver
on appeal. Campbell v. Taylor, 159 So. 3d 4, 11 (Ala. 2014). Arguments
made for the first time in a reply brief are waived. See Fogarty v.
Southworth, 953 So. 2d 1225, 1232 (Ala. 2006). Accordingly, the mother
waived her argument that the father did not aver that she avoided service
of process.
For these reasons, the mother does not demonstrate that she is
entitled to a writ of mandamus directing the circuit court to dismiss the
Alabama action for lack of personal jurisdiction.
Conclusion
Based on the foregoing, we grant the mother's petition in part and
issue a writ of mandamus directing the circuit court to vacate its orders
denying the mother's motions to dismiss for lack of subject matter
jurisdiction under § 30-2-5 and under § 30-3B-201 of the UCCJEA. As
explained above, we direct the circuit court to provide the father a
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CL-2026-0240
reasonable opportunity to present evidence regarding subject matter
jurisdiction under those Code sections before ruling on the mother's
motions to dismiss. We deny the mother's petition in all other respects.
The father's motion for limited relief from this court's order staying
the proceedings below and the mother's motion to submit limited
supplemental materials are denied.
PETITION GRANTED IN PART AND DENIED IN PART; WRIT
ISSUED.
Moore, P.J., and Edwards, Hanson, and Bowden, JJ., concur.
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