Professional Documents
Culture Documents
15A532
RUTH N. BORENSTEIN
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105
Telephone: 415.268.7500
MARC A. HEARRON
Counsel of Record
SETH W. LLOYD*
MORRISON & FOERSTER LLP
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Telephone: 202.778.1663
MHearron@mofo.com
Counsel for Applicant
*Admitted in California. Admission to
D.C. pending. Work supervised by
firm attorneys admitted in D.C.
DECEMBER 1, 2015
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... ii
INTRODUCTION .......................................................................................................... 1
ARGUMENT .................................................................................................................. 2
I.
II.
III.
CONCLUSION............................................................................................................. 12
TABLE OF AUTHORITIES
Page(s)
CASES
Abushmais v. Erby,
652 S.E.2d 549 (Ga. 2007) ........................................................................................ 5
Adoptive Couple v. Baby Girl,
133 S. Ct. 2552 (2013) ............................................................................................ 12
Amerson v. Vandiver,
673 S.E.2d 850 (Ga. 2009) ........................................................................................ 8
Ankenbrandt v. Richards,
504 U.S. 689 (1992) ................................................................................................ 11
Baker ex rel. Thomas v. Gen. Motors Corp.,
522 U.S. 222 (1998) .................................................................................................. 4
Bates v. Bates,
730 S.E.2d 482 (Ga. Ct. App. 2012) ......................................................................... 3
Coe v. Coe,
334 U.S. 378 (1948) .................................................................................................. 7
Conkright v. Frommert,
556 U.S. 1401 (2009) .............................................................................................. 10
Crutchfield v. Lawson,
754 S.E.2d 50 (Ga. 2014) .......................................................................................... 5
Milliken v. Meyer,
311 U.S. 457 (1940) .................................................................................................. 4
Mosley v. Lancaster,
770 S.E.2d 873 (Ga. 2015) .................................................................................... 5, 6
Treinies v. Sunshine Mining Co.,
308 U.S. 66 (1939) .................................................................................................... 7
Underwriters Natl Assur. Co. v. N. C. Life & Acc. & Health Ins. Guar. Assn,
455 U.S. 691 (1982) .............................................................................................. 4, 9
Webb v. Webb,
451 U.S. 493 (1981) .................................................................................................. 2
ii
iii
INTRODUCTION
E. L.s response to V. L.s stay application does not even mention that the
Guardian Ad Litem filed his own application. Although E. L. states in a letter that
she intends her opposition to V. L.s application also to apply to the Guardian Ad
Litems, she made no effort whatsoever to respond to many of the Guardian Ad
Litems reasons for staying and recalling the Alabama Supreme Courts certificate
of judgment. For good reason: she has no valid responses.
The requirements for a stay are met here. There is a reasonable prospect
that certiorari will be granted. Contrary to E. L.s suggestions, the petition is not
seeking mere error correction. The Alabama Supreme Courts judgment will wreak
havoc not only on V. L. and her children but on other families as well. Children in
Alabama are now in grave danger of having a legal parent through an out-of-state,
second-parent adoption being declared a stranger to them. Even children residing
outside of Alabama are at such risk when they travel into Alabama.
This
Courts decision, and her inability to respond to V. L.s and the Guardian Ad Litems
arguments, only highlight the decisions gaping flaws. Finally, there can be no
question that the children are being harmed and will continue to be harmed absent
a stay.
ARGUMENT
I.
See Webb v.
See
into Alabama. Moreover, the Alabama Supreme Courts rationale would extend to
adoption judgments from other States in which second-parent adoptions have been
openly granted without any clear statutory or precedential guidance providing for
them. See Fenton & Fenton, supra (listing eleven such States, apart from Georgia).
And no principled distinction would limit the Alabama Supreme Courts rationale
from extending to any state adoption decree that an Alabama court deems faulty.
This Courts review is therefore warranted not simply to correct an error in
this particular case but to eliminate the serious dangers that the Alabama decision
poses for families not only in Alabama but throughout the Nation.
II.
petition is granted, the decision of the Supreme Court of Alabama will be reversed.
The Full Faith and Credit Clause precludes courts in one State, presented with a
judgment from another, from any inquiry into the merits of the cause of action, the
logic or consistency of the decision, or the validity of the legal principles on which
the judgment is based.
Underwriters Natl Assur. Co. v. N. C. Life & Acc. & Health Ins. Guar. Assn, 455
U.S. 691, 702 (1982); Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 223
(1998). Full faith and credit may be denied only when the issuing court lacked
jurisdiction either of the subject matter or of the person of the defendant.
Williams v. North Carolina, 317 U.S. 287, 297 (1942).
question is not whether the Georgia adoption statutes provide for second-parent
adoptions; it is whether the Georgia superior court had jurisdiction to issue
adoption decrees in general. As the Guardian Ad Litem explained (at 14), Georgia
defines subject-matter jurisdiction as the power to hear specified kinds of cases,
i.e., the power to deal with the general abstract question, to hear the particular
facts in any case relating to this question. Crutchfield v. Lawson, 754 S.E.2d 50, 52
(Ga. 2014) (quotation marks and citations omitted) (emphasis added); see
Abushmais v. Erby, 652 S.E.2d 549, 550 (Ga. 2007) (Jurisdiction of the subject
matter does not mean simply jurisdiction of the particular case then occupying the
attention of the court, but jurisdiction of the class of cases to which that particular
case belongs. (quoting Hopkins v. Hopkins, 229 S.E.2d 751, 752 (Ga. 1976)).
For example, in Mosley v. Lancaster, the appellant contended that a Georgia
superior court lacked subject-matter jurisdiction to deny probate of a will without
impaneling a jury, relying on a statute providing that a jury must be empaneled in
cases touching the probate of wills. 770 S.E.2d 873, 876 (Ga. 2015) (quoting Ga.
Code Ann. 15-6-8(4)(E)). Rejecting that argument, the Supreme Court of Georgia
explained that the Georgia Constitution establishes the superior courts as courts of
general jurisdiction and that a statute grants superior courts jurisdiction to
review the judgments of probate courts, including those touching on the probate of
wills.
Id. at 877.
superior court still had subject-matter jurisdiction because it had jurisdiction of the
class of cases to which this case belongs. Ibid. (quoting Crutchfield, 754 S.E.2d at
52).
So too here. There is no dispute that the Georgia superior court had the
power to deal with the general abstract question of adoption petitions.
As the
Alabama Supreme Court acknowledged, Georgia superior courts like the Georgia
court have subject-matter jurisdiction over, that is, the power to rule on, adoption
petitions. App. 25a. That should have ended the analysis. Notably, E. L. has no
response to the way in which Georgia defines subject-matter jurisdiction, nor can
she point to a single Georgia decision holding that failure to meet a requirement in
an adoption statute deprives a Georgia court of the power to issue an adoption
decree.
E. L. also cannot rebut that Section 19-8-18 of the Georgia Code provides that
[i]f the court determines that any petitioner has not complied with this chapter, it
may dismiss the petition for adoption without prejudice or it may continue the case.
Ga. Code Ann. 19-8-18 (emphasis added).
application (at 15), Section 19-8-18 contains other adoption requirements plainly
going to the merits, not jurisdiction, including that an adoption petition shall be
granted only if the court is satisfied that the adoption is in the best interests of the
child. Ibid. E. L. lacks any response.
E. L. also completely fails to grapple with the Georgia statute of repose for
adoptions, under which Georgia courts will enforce an adoption judgment even if
there was no jurisdiction to issue it. Ga. Code Ann. 19-8-18(e); see Williams v.
Williams, 717 S.E.2d 553, 553-54 (Ga. Ct. App. 2011). That alone is enough to
conclude that the Alabama Supreme Courts judgment cannot stand.
Additionally, the Guardian Ad Litem explained that under Georgia law,
because of the compelling need for finality and stability in family matters, a party
such as E. L. who participated in prior litigation cannot later challenge the
judgment, even if the court lacked jurisdiction to issue the decree. Guardian Ad
Litem Stay Application 16 (citing Amerson v. Vandiver, 673 S.E.2d 850, 851 (Ga.
2009)). In a footnote, E. L. attempts to distinguish Amerson, suggesting it holds
only that under some circumstances laches may bar a parents jurisdictional
challenge to a termination of rights. E. L. Opp. 18 n.8. But those circumstances
exist here. Amerson held that where a party affirmatively invoked the jurisdiction
of the superior court for the purpose of obtaining a divorce, consented to that courts
incorporation of the settlement agreement [terminating his parental rights], and
then failed to file a motion to set aside for four years, the party could not challenge
the superior courts jurisdiction to terminate his parental rights. 673 S.E.2d at 851.
Here, E. L. affirmatively invoked the jurisdiction of the Georgia superior court for
the purpose of obtaining an adoption decree, consented to the issuance of that
decree, and failed to challenge the jurisdiction for many years. Because the Georgia
courts would continue to recognize the validity of the adoption judgment, the
Alabama courts are bound to do so as well. See Underwriters Natl Assur., 455 U.S.
at 702.
In short, there are multiple, unrebutted reasons that the Alabama courts
refusal to give full faith and credit to the Georgia adoption judgment violated the
Constitution. If certiorari is granted, this Court is likely to reverse.
III.
continue to cause serious irreparable harm in the lives of the three children at issue
here. She has never contested V. L.s fitness as a parent, nor has she ever disputed
that visitation is in the childrens best interests. She suggests that the harm to the
children is based on nothing more than general social science principles. E. L.
Opp. 20. But she completely ignores the Guardian Ad Litems judgment about the
best interests of these children. Based not only on his experience but also on his
relationship and communication with these particular children, the Guardian Ad
Litem has determined that lack of visitation is detrimental to the childrens welfare
and that the childrens emotional needs demand visitation with their mother, V. L.
That alone is compelling evidence of irreparable harm.
Contrary to E. L.s suggestion (at 19-20), a stay and recall of the Alabama
Supreme Courts certificate of judgment would reinstate the visitation order that
was in place before the Alabama Supreme Court stayed it. The Alabama Court of
Civil Appeals initially concluded that V. L. was not an adoptive parent, and it
expressly granted E. L. a stay of enforcement of the family courts visitation order.
Reply App. 82a. But on rehearing, that court withdrew its decision and issued a
9
new decision holding that the Georgia adoption judgment is entitled to recognition.
App. 59a-60a. The court also held that the family court erred in issuing a final
visitation order without conducting an evidentiary hearing, and it remanded for
such a hearing.
App. 60a-61a.
decision, the appellate court did not stay enforcement of the family courts existing
visitation order. App. 61a. All parties agreed that the visitation order was in effect,
and in fact V. L. continued to have visitation with her children. Indeed, recognizing
that the intermediate appellate court had left the visitation order in force, E. L.
sought a stay from the Alabama Supreme Court. Reply App. 63a-66a. Contrary to
her position now (E. L. Opp. 20), E. L. acknowledged in her stay motion that
[w]hen the Court of Civil Appeals issued its Opinion on rehearing * * * , it did not
re-issue or re-instate a stay, despite reversing the trial courts order and
remanding. Reply App. 65a. Only once the Alabama Supreme Court granted her
stay motion in April 2015 (Reply App. 62a) was visitation terminated. A stay of the
Alabama Supreme Courts decision now would mean that the parties would be
governed by the non-stayed visitation order that was in effect at the conclusion of
the Alabama intermediate courts proceedings.
In deciding whether to issue a stay, this Court may balance the equities.
Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers).
The equities here strongly favor granting of a stay. E. L. does not contend that she
or the children would be harmed if visitation were restored. E. L. suggests only
that V. L. does not have clean hands because the parties sought to establish
10
Indeed, it is E. L. who has sought to game the courts by acceding to the Georgia
courts authority when it suited her interests and challenging the Georgia courts
jurisdiction only now that her wishes have changed.
Finally, granting relief would not convert this Court into a family court or
require the Court to issue a domestic-relations decree. Contra E. L. Opp 20. The
Georgia court already found that the adoption was in the childrens best interests
and issued the adoption decree. The issue in this Court is whether to stay the
Alabama judgment refusing to recognize the Georgia judgment. That issue does not
implicate the domestic-relations exception to federal jurisdiction. See Ankenbrandt
v. Richards, 504 U.S. 689, 702 (1992) (federal courts may enforce domestic-relations
The Alabama Supreme Court did not reach the questions whether E. L. and
V. L. had established residency in Georgia and, if not, whether the adoption would
be recognized in Alabama. App. 30a-31a n.10. But even if Georgia residency had
not been established, the Georgia court still had jurisdiction to issue the adoption
judgment. As the Alabama Supreme Court recognized, E.L. and V.L. willingly
appeared with the children before the Georgia court, so personal jurisdiction is not
disputed. App. 16a-17a. Moreover, the requirement that the adoption petitioner
have been a bona fide resident of this state for at least six months immediately
preceding the filing of the petition is simply a statutory requirement for granting
an adoption petition, not a limitation on the Georgia superior courts subject-matter
jurisdiction over adoption proceedings. Ga. Code Ann. 19-8-3(a)(3). In any event,
this Court need not decide this issue if it grants the petition.
1
11
(2013).
CONCLUSION
The Guardian Ad Litem's application for recall and stay of the Certificate of
Judgment should be granted.
Respectfully submitted,
Zor+42*r.n^*
Menc A. HnaRnoN
RurH N. BonnNSTEIN
Monnrsor.l & Fopnsrnn LLP
426Market Street
San Francisco, California 941-05
Telephon
e:
Counsel of Record
Snru W. Llovr*
Monnrsox & FonnsrnR LLP
2000 Pennsylvania Avenue, N.W
IVashington, D.C. 20006
4L5.268. 7500
dc-812769
L2
No. 154532
Applicant,
v
E. L. and V. L.,
Respondents.
CERTIFICATE OF SERVICE
I, Marc A. Hearron, hereby certi$z that I am a member of the Bar of this Court,
and that I have this 1st day of December 2015, caused one copy of the Reply in
Support of Application of the Guardian Ad Litem for Recall and Stay of Certificate of
Judgment of the Supreme Court of Alabama Pending Filing and Disposition of a
Petition for a Writ of Certiorari to be served via overnight mail and an electronic
version of the document to be transmitted via electronic mail to:
Adam G. Unikowsky
Jenner & Block LLP
1099 New York Ave., NW,
Suite 900
Washington, DC 20001
aunikowsky@jenner.com
S. Kyle Duncan
Duncan PLLC
1629 K Street NW, Suite 300
Washington, DC 20006
kduncan@duncanpllc.com
Marc A. Hearron
REPLY APPENDIX
62a
ORDER
Petitioner's Motion to Stay Pending Consideration of Petition for Writ of Certiorari
to the Court of Civil Appeals is granted.
I, Julia Jordan Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same
appear(s) of record in said Court.
Witness my hand this 15th day of April, 2015.
cc:
Hon. R e b e c c a Oates
Hon. Raymond Chambliss
Anne Lamkin Durward, E s q .
Randall W . Nichols, E s q .
Heather F a n n , E s q .
Catherine Sakimura, E s q .
Traci Owen Vella, E s q .
Michael Stuart N i s s e n b a u m , E s q .
Breauna R. Peterson, E s q .
Tobie J . Smith, E s q .
Herbert Francis Y o u n g , Jr., E s q .
Bryant Andrew Whitmire, Jr, E s q .
/as
63a
E-Filed
03/12/2015 @ 11:05:57 AM
Honorable Julia Jordan Weller
Clerk Of The Court
DOCKET NUMBER
1140595
PETITIONER
V.L.,
v.
RESPONDENT
Appellant,
this
Court
E.L., ( h e r e i n a f t e r
t o grant
a s t a y o f t h e enforcement
which
Court
o f C i v i l Appeals
At
issue
recognize
court
when
and grant
Alabama
f o r Writ
o f Alabama f i l e d
i n t h e appeal
a "second
parent"
visitation
does
"Mother")
rights
not recognize
o f the order
t o the
on M a r c h 11,
granted
2015.
Alabama
must
by a Georgia
t o t h e "second
such
moves
of Certiorari
i s whether
adoption
hereby
adoptions
parent"
as v a l i d .
S e c o n d - p a r e n t a d o p t i o n i s d e f i n e d a s " [ a ] n a d o p t i o n b y an
unmarried c o h a b i t i n g partner o f a c h i l d ' s l e g a l parent, not
involving the termination of a l e g a l parent's r i g h t s ; esp.,
an a d o p t i o n i n w h i c h
a lesbian,
g a y man, o r u n m a r r i e d
h e t e r o s e x u a l person adopts h i s o r h e r p a r t n e r ' s b i o l o g i c a l
o r a d o p t i v e c h i l d . " BLACK's LAW DICTIONARY 53-54 ( 8 t h e d .
2004).
1
64a
Based
on
such
recognition,
the t r i a l
visitation
rights
biological
Mother
sought
When t h e t r i a l
the
Court
motion
The
to
of
because
Family
stay.
f o r t h e Respondent,
a stay
court
Civil
Appeals
the t r i a l
Appeals
below
V.L., w i t h
the t r i a l
d i d not r u l e ,
court
she s o u g h t
court
(Ex. "Q") .
Mother
denied.
entered
Appeals
( " I n i t i a l Opinion"),
Mother's
a stay
from
denied
the
had y e t t o r u l e
filed
ordered
(Ex. "M") .
from
court
(Ex. "P") .
the motion
a renewed m o t i o n t o s t a y
(Ex. "R") .
T h a t m o t i o n was
Then, when t h e C o u r t o f C i v i l
Opinion
on
October
24,
2014
i t r u l e d as f o l l o w s :
In e a r l i e r
proceedings
before
this
court, the
m o t h e r moved f o r a s t a y o f e n f o r c e m e n t o f t h e
f a m i l y c o u r t ' s judgment.
This court denied that
motion.
I n l i g h t o f o u r o p i n i o n i n t h i s c a s e , we
hereby r e c o n s i d e r o u r r u l i n g and g r a n t t h e s t a y
p e n d i n g f u r t h e r p r o c e e d i n g s i n t h i s o r o u r supreme
court.
I f no f u r t h e r a p p e l l a t e p r o c e e d i n g s
are
undertaken,
upon t h e i s s u a n c e
of t h i s
court's
c e r t i f i c a t e o f judgment t h e judgment o f t h e f a m i l y
c o u r t w i l l be a n n u l l e d a n d t h e s t a y d i s s o l v e d f o r
lack of necessity.
See S h i r l e y v. S h i r l e y ^ 361
So.
2d 590, 591
( A l a . C i v . App.
1978)("The
r e v e r s a l o f a judgment, o r a p a r t t h e r e o f , w h o l l y
a n n u l s i t , o r t h e p a r t o f i t , as i f i t n e v e r
C i t a t i o n s t o E x h i b i t s are t o those
Memorandum i n S u p p o r t o f t h i s M o t i o n .
filed
with
Mother's
2
65a
e x i s t e d . _ Another
judgment r e n d e r e d by a c o u r t
w i t h j u r i s d i c t i o n must t h e r e a f t e r r e p l a c e i t . " ) .
(Initial
O p i n i o n , Ex. "T", p. 1 4 ) .
The
Court
of
and
held
rehearing
following
27,
Appeals
2015
instate
and
("Rehearing
the
in
clear
On
of C i v i l
granted
the
afternoon
Appeals
entered
i t s Opinion
Opinion"),
on r e h e a r i n g
with
on
February
i t d i d not r e - i s s u e or r e
reversing the t r i a l
f o r hearing
Court
of
the order
i s the order
biologically
arguments.
the Court
despite
subsequently
regard
court's
to i t svoid
order
order.
acknowledges,
stay
issued
a stay,
Appeals
the stay.
("Rehearing
remanding
As
oral
t h e argument,
an O r d e r d i s s o l v i n g
Civil
Civil
Civil
which
Appeals
the Petitioner
granting v i s i t a t i o n
related
violation
person
of
( R e h e a r i n g O p i n i o n Ex. "W",
Rehearing
without
i s seeking to
privileges
t o a non-
an e v i d e n t i a r y h e a r i n g
established
pp.
Opinion
Alabama
precedent.
16-17).
66a
Mother
have
decree
adoption
i s not
courts.
that,
faith
i n consideration
to
visitation
order
pending
i n this
and d i f f e r e n t
to
enter
even
and
enter
the
"second-
from
Alabama
Motion.
of the foregoing,
stay
of
The M o t h e r
relief
d i d not
i s s e t f o r t h more f u l l y i n
the completion
cause.
court
i f i t d i d , that
credit
i n support of t h i s
Court
the
and
full
this
further
the Georgia
legal position
Memorandum f i l e d
proceedings
that
jurisdiction
decree
due
Mother's
WHEREFORE,
asks
contends
subject-matter
parent"
the
also
t o which
the
trial
of the
also
Mother
court's
appellate
requests
she may be
such
entitled,
premises c o n s i d e r e d .
R e s p e c t f u l l y submitted,
/s/KaA^dOLiM).
Nichols
R a n d a l l W. N i c h o l s
rnichols@msnattorneys.com
Anne L a m k i n D u r w a r d
adurward@msnattorneys.com
Attorneys f o r Petitioner
MASSEY, STOTSER & NICHOLS, PC
1780 Gadsden Highway
B i r m i n g h a m , AL
35235
(205) 838-9000
67a
DOCKET NUMBER
1140595
PETITIONER
V.
V.L.,
RESPONDENT
CERTIFICATE OF SERVICE
The u n d e r s i g n e d h e r e b y c e r t i f i e s t h a t a copy o f t h e
foregoing
has been
filed
electronically,
on t h e d a t e
indicated.
In accordance with e l e c t r o n i c f i l i n g procedure.
N i n e (9) c o p i e s w i l l be m a i l e d t o t h e C l e r k o f t h i s C o u r t
and a copy w i t h be m a i l e d t o t h e o p p o s i n g c o u n s e l as
indicated.
DATED t h i s
Hon. R e b e c c a C. G a t e s ,
Alabama Court o f C i v i l
300 D e x t e r A v e .
Montgomery, AL 36104
Clerk
Appeals
T r a c i Owen V e l l a
VELLA & KING
3000 C r e s c e n t Avenue
B i r m i n g h a m , AL 35209
tvellagvellaking.com
C a t h e r i n e Sakimura
N a t i o n a l Center f o r Lesbian Rights
870 M a r k e t S t r e e t , S t e . 370
San F r a n c i s c o , CA 94104
csakimuraSnclrights.org
5
68a
B r e a u n a Renea P e t e r s o n
Tobie J . Smith
H e r b e r t F. Young, J r .
M i c h a e l N. Nissembaum
L e g a l A i d S o c i e t y o f Birmingham
120 2'"'^ C o u r t N o r t h
B i r m i n g h a m , AL
35204
petersonbgj ccal.org
smithtogj ccal.org
youngbgj c c a l . o r g
nissenbaumm@j c c a l . o r g
H e a t h e r Fann
BOYD, FERNAMBUCQ, DUNN & FANN
3500 B l u e L a k e D r i v e
S t e . 220
B i r m i n g h a m , AL 35243
hfanngbfattorneys.com
B r y a n t A. W h i t m i r e , J r .
215 R i c h a r d A r r i n g t o n J r . B l v d . N o r t h
S t e . 501
B i r m i n g h a m , AL 35203
dwhitm@bellsouth.net
R a n d a l l W. N i c h o l s
Attorney f o r Petitioner
69a
REL: 10/24/2014
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)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
("the
mother")
appeals
from
judgment
of
the
biological
children,
S.L.,
N.L.,
and
H.L.
70a
2130683
(hereinafter referred to collectively as "the children").
We
October
31,
2013,
V.L.
filed
petition
in
the
In that
petition, V.L. asserted that she and the mother had engaged in
a same-sex relationship from 1995 to 2011; that, during the
course of their relationship, the mother had given birth to
S.L. on December 13, 2002, and to twins, N.L. and H.L., on
November 17, 2004, through the use of assisted reproductive
technology;
that,
at
all
times
since
the
birth
of
the
71a
2130683
she had secured in the Georgia judgment, including visitation
and access to their educational and other information.
V.L.
requested
judgment;
that
the
declare
her
circuit
court
legal
status,
register
the
rights,
and
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the family court's jurisdiction.1
On February 3,
motion
to
dismiss.
On
March
11,
2014,
the
mother
the
mother's
motion
to
dismiss
and
awarded
V.L.
On
April 17, 2014, the mother moved the family court to alter,
amend, or vacate its judgment.
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postjudgment motion was deemed denied by operation of law, and
on May 12, 2014, the mother timely filed her notice of
appeal.2
App. P.; and Holifield v. Lambert, 112 So. 3d 489, 490 (Ala.
Civ. App. 2012) ("[C]ases filed in the Jefferson Family Court
and docketed with a case number having a 'CS' prefix[] are
governed by the Alabama Rules of Juvenile Procedure.").
Analysis
Although the mother raises five different arguments for
reversing the judgment of the family court, we find one issue
to be dispositive - that the Georgia judgment was rendered
without subject-matter jurisdiction. Hence, we do not address
the other arguments raised by the mother.
We begin by noting that the family court acts as a
juvenile and domestic-relations court with jurisdiction equal
to the circuit courts in matters relating to child custody.
See Act No. 478, Ala. Acts 1935, 2 & 3; and Placey v.
Although the mother moved the family court and this court
to stay enforcement of the judgment pending resolution of her
postjudgment motion and appeal, those motions were denied.
The mother subsequently petitioned our supreme court for
mandamus relief from the denial of those motions (No.
1131084); that petition remains pending.
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Placey, 51 So. 3d 374, 375 n.2 (Ala. Civ. App. 2010).
As
such, the family court had the power to act on the petition
filed by V.L. pursuant to the Uniform Enforcement of Foreign
Judgments Act ("the UEFJA"), Ala. Code 1975, 6-9-230 et seq.
See Nix v. Cassidy, 899 So. 2d 998, 1002 (Ala. Civ. App. 2004)
("The circuit court had jurisdiction to accept the judgment
creditor's filing of the Georgia judgment pursuant to 6-9232[,
Ala.
Code
1975].").
V.L.
followed
the
procedure
6-9-232.
"Therefore, once
Greene v. Connelly,
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628 So. 2d 346, 350 (Ala. 1993), abrogated on other grounds,
Ex parte Full Circle Distrib., L.L.C., 883 So. 2d 638 (Ala.
2003).
We,
See Bartlett v.
Unistar Leasing, 931 So. 2d 717, 720 n.2 (Ala. Civ. App.
2005).
"Before giving effect to a foreign judgment, Alabama
courts are permitted to inquire into the jurisdiction of the
foreign court rendering the judgment."
So. 2d 411, 413 (Ala. Civ. App. 1993); see also Pirtek USA,
LLC v. Whitehead, 51 So. 3d 291, 295 (Ala. 2010).
Generally
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Wholesalers, Inc., 586 So. 2d 10, 11 (Ala. Civ. App. 1991)).
However, if the court entering the foreign judgment did not
litigate
and
decide
the
question
of
its
subject-matter
is
presumption
that
the
court
rendering
the
The
and
consistent
with
their
life-long
parenting
In that
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legal authority to approve the adoption of the children by the
same-sex partner of the biological mother without terminating
the biological mother's parental rights.
not fully and fairly litigated, the family court could have
determined
for
itself
whether
the
Georgia
court
had
The
mother's
failure
to
contest
subject-matter
jurisdiction before the Georgia court does not prevent her
from now challenging subject-matter jurisdiction in Alabama
because subject-matter jurisdiction cannot be conferred by
estoppel, see Cedartown North P'ship, LLC v. Georgia Dep't of
Transp., 296 Ga. App. 54, 56, 673 S.E.2d 562, 565 (2009) ("It
is well established that '[j]urisdiction of the subject matter
of a suit cannot be conferred by agreement or consent, or be
waived or based on an estoppel of a party to deny that it
exists.'" (quoting Redmond v. Walters, 228 Ga. 417, 417, 186
S.E.2d 93, 94 (1971))); see also Vann v. Cook, 989 So. 2d 556,
559 (Ala. Civ. App. 2008), and may be raised at any time.
Abushmais v. Erby, 282 Ga. 619, 652 S.E.2d 549 (2007); and Ex
parte Ortiz, 108 So. 3d 1046 (Ala. Civ. App. 2012).
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adoption
by
same-sex
partner.
Nevertheless,
lack
of
court did not consider the issue, this court can now determine
for itself the authority of the Georgia court to enter the
Georgia judgment.
The Georgia Supreme Court has not yet construed the
provisions of the Georgia Adoption Code, Ga. Code Ann., 198-1 et seq., to determine if it allows adoption by a same-sex
partner who has assumed a de facto parental role. However, in
Wheeler
v.
Wheeler,
281
Ga.
838,
642
S.E.2d
103
(2007)
unless
the
parents
of
the
child
surrender
their
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adoptions4 and that arguments against the validity of an
adoption decree approving such an adoption "might well have
some merit."
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of the legal theory employed, a judgment purporting to approve
an
adoption
by
same-sex
partner,
which
preserves
the
492, 506, 516 N.W.2d 678, 681 (1994) (holding that, before a
trial court may find "'that a second parent adoption is in a
child's best interests, it must first determine whether it has
the
power
to
grant
such
an
adoption
under
the
existing
subject-matter
jurisdiction
to
enter
the
Georgia
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premising the award of visitation solely on the terms of the
Georgia
judgment
offered by V.L.
and
as
rejecting
any
alternative
bases
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arguments for V.L. that might enable her to gain visitation
rights.
for
judgment.
stay
of
enforcement
of
the
family
court's
In light of our
See Shirley v.
Shirley, 361 So. 2d 590, 591 (Ala. Civ. App. 1978) ("The
reversal of a judgment, or a part thereof, wholly annuls it,
or the part of it, as if it never existed. ... Another
judgment rendered by a court with jurisdiction must thereafter
replace it.").
The mother's request for the award of attorney's fees on
appeal is denied.
STAY GRANTED; REVERSED AND REMANDED.
All the judges concur.
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