In re: Melanie Beth Brown v. Colin Newmeyer

Rel: October 16, 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, 2026-2027 _________________________ CL-2026-0809 _________________________ Ex parte Colin Newmeyer PETITION FOR WRIT OF MANDAMUS (In re: Melanie Beth Brown v. Colin Newmeyer) (Perry Circuit Court: DR-26-900005) EDWARDS, Judge. Colin Newmeyer ("the father") has filed a petition for the writ of mandamus seeking an order from this court directing the Perry Circuit Court to vacate its order denying his motion to transfer the underlying CL-2026-0809 paternity and custody action from the Perry Circuit Court to the Elmore Circuit Court and to enter an order transferring the action. Upon consideration of the petition and the answer to that petition filed by Melanie Beth Brown ("the mother"), we conclude that the father is entitled to the relief he seeks. We therefore grant the petition and issue the writ. This is not the first petition for the writ of mandamus that the father has brought before this court concerning the underlying paternity and custody action. 1 We set forth much of the relevant procedural history in Ex parte Newmeyer, [Ms. CL-2026-0549, July 24, 2026] ___ So. 3d ___ (Ala. Civ. App. 2026). "On April 16, 2026, the mother filed a petition in the Perry Circuit Court seeking to establish the father as the legal father of L.A.N. ('the child'). The mother also requested that she be awarded sole legal and sole physical custody of the child, subject to an award of visitation to the father, and that the father be ordered to pay child support for the child. On May 8, 2026, the father filed a motion to transfer the action from the Perry Circuit Court to the Elmore Circuit Court. He asserted that he had been a resident of Elmore County since 2013, that the child was a lifelong resident of Elmore County, that the child had always attended school in Elmore County, that the mother had been a resident of Elmore County until shortly before she filed her petition in the Perry Circuit Court, and that he believed that the mother retained a residence in 1The father and the mother have never been married. 2 CL-2026-0809 Elmore County. The father supported his motion with an affidavit that further stated that the parties had 'exercised 50/50 custodial time [with the child] since he was 2 years of age' and that the child's extracurricular activities, school, pediatrician, dentist, and counselor were located in and around Elmore County. "On May 15, 2026, the Perry Circuit Court set the father's motion for a hearing to be held on June 4, 2026. On May 26, 2026, the mother filed a verified response to the father's motion in which she asserted that she was a resident of Perry County and that '[a]s the sole legal and custodial parent of [the child,] the child's residence is the same as [the] mother's residence.' Also on May 26, 2026, the Perry Circuit Court entered an order noting the mother's response and rescheduling the hearing on the father's motion from June 4, 2026, to September 28, 2026. "On May 27, 2026, the father filed a motion requesting that the Perry Circuit Court either enter an order reinstating the hearing on June 4, 2026, or, in the alternative, conduct a hearing on his motion to transfer the action 'on the first available setting before the [Perry Circuit C]ourt.' The father simultaneously filed an amended motion to transfer the action in which he fully incorporated his May 8, 2026, motion and attached additional documents purporting to demonstrate that the child had attended school and had participated in extracurricular activities solely in Elmore County and had consistently attended medical appointments in and around Elmore County. The father's amended motion also included affidavits from the father's father, Brian Newmeyer; the father's mother, Kristi Newmeyer; the father's mother-in-law, Melanie Boulware; and the father's father-in- law, William Boulware, attesting that the child was a lifelong resident of Elmore County and that the child has strong familial ties to Elmore County. On May 28, 2026, the Perry Circuit Court denied the father's May 27, 2026, motion to reinstate the June 4, 2026, hearing date and noted that the 3 CL-2026-0809 matter remained set for a hearing on September 28, 2026. The Perry Circuit Court's order further provided that the '[p]arties are encouraged to work toward[] a resolution during this time.' The order did not address the father's amended motion to transfer the action. "On June 4, 2026, the father renewed his motion, requesting that the Perry Circuit Court conduct a hearing on his motion to transfer before September 28, 2026. The father specifically noted that the child had attended Holtville Elementary School in Elmore County his entire academic career and that the September 28, 2026, hearing date would occur after the 2026-2027 academic year had commenced. The father, relying on Ex parte Windom, 776 So. 2d 799 (Ala. 2000), and Ex parte Nationwide Agribusiness Ins. Co., 276 So. 3d 674 (Ala. 2018), argued that trial courts generally should rule on motions alleging improper venue as expeditiously as possible. The father concluded his renewed motion by requesting that the Perry Circuit Court conduct a hearing on his motion and enter a ruling on that motion before July 31, 2026, to prevent undue disruption to the child's life and so that the 'matter may be taken up in the proper venue.' The Perry Circuit Court did not rule on the father's June 4, 2026, motion." Id. at ___ (footnotes omitted). On June 23, 2026, the father filed the petition for the writ of mandamus at issue in Ex parte Newmeyer, requesting that this court direct the Perry Circuit Court to "expeditiously" hold a hearing on his motion to transfer the underlying paternity and custody action to the Elmore Circuit Court. This court granted that petition and directed the Perry Circuit Court to hold a hearing or to rule on the father's motion 4 CL-2026-0809 within seven days of the issuance of our July 24, 2026, opinion. 2 On July 24, 2026, in compliance with the directive set out in Ex parte Newmeyer, the Perry Circuit Court entered an order providing the parties five days to "submit any supplemental pleadings" concerning venue. The mother filed a supplemental response and an affidavit in which she stated that she had relocated to Perry County with the child sometime in 2025 and that she had submitted a change-of-address form to the United States Postal Service on April 2, 2026, requesting that her mail be forwarded to her "permanent primary residential address" in Perry County. 3 On July 31, 2026, the Perry Circuit Court entered an order denying the father's motion to transfer the paternity and custody action to the Elmore Circuit Court. 4 In denying the father's motion, the Perry Circuit Court determined that the mother was a resident of Perry County and that, 2In doing so, we expressed no opinion on the merits of the father's motion to transfer the action from the Perry Circuit Court to the Elmore Circuit Court. 3The mother also stated that she had married Larry Brown in Perry County on April 6, 2026. The mother attached the marriage certificate as an exhibit to her supplemental response. 4It does not appear that the Perry Circuit Court held a hearing on the father's motion. 5 CL-2026-0809 "[a]s the sole legal and custodial parent of [the child], the child's residence or domicile is the same as his mother's residence or domicile." On August 14, 2026, the father filed a motion requesting that the Perry Circuit Court reconsider its order denying his motion to transfer the paternity and custody action to the Elmore Circuit Court. The father asserted that the mother had failed to demonstrate that she had resided in Perry County for six months before initiating the paternity and custody action. The father also asserted that the Perry Circuit Court's order denying his motion violated his due-process rights and revived the tender-years doctrine, which was abolished by our supreme court in Ex parte Devine, 398 So. 2d 686 (Ala. 1981). The Perry Circuit Court denied the father's motion on August 26, 2026. In its August 26, 2026, order, the Perry Circuit Court explained its rationale in denying the father's motion: "In Rainer v. Feldman, 568 So. 2d 1226, 1227 (Ala. 1990), the Supreme Court of Alabama expressly recognized that Alabama law maintains a strong presumption that the mother of a child born out of wedlock has a superior right of custody over all other persons, absent good cause to deny her custody. That principle is consistent with the earlier Alabama decisions cited in Rainer, including Jackson v. Farmer, 247 Ala. 298, 24 So. 2d 130 (1945), and Garrett v. Mahaley, 199 Ala. 606, 75 So. 10 (1917). 6 CL-2026-0809 "The child's legal domicile and residency follow the custodial parent, which in this case is the [the mother] as pointed out in footnote 3 of ... the Court of Civil Appeals Opinion (CL-2026-0549). The Alabama Supreme Court addressed this principle in Moss v. Ingram, 246 Ala. 214, 20 So. 2d 202 (1944), stating that the domicile of the custodial parent is the domicile of the child. Because the mother is the presumptive sole legal custodian of a child born out of wedlock in Alabama, the child's domicile and residency is the mother's domicile. "The Court has considered the [father's] request to transfer this proceeding from Perry County. The Court finds that Perry County is the proper venue for this proceeding under the circumstances established by the record. The mother resides in Perry County, Alabama, and, consistent with the custodial principles applicable to a child born out of wedlock, the child's custodial circumstances as the mother being the 'sole legal parent' and the residential circumstances, the elements are well established and are centered in Perry County. "The [father] has not established a sufficient legal basis requiring this Court to transfer the action from Perry County. Nor has the [father] demonstrated that the present venue is improper or that [a transfer of this action to the] Elmore [Circuit Court] is required by applicable law." (Emphasis omitted.) On September 2, 2026, the father filed the present petition for the writ of mandamus requesting that this court direct the Perry Circuit Court to vacate its order denying his motion to transfer and direct the 7 CL-2026-0809 Perry Circuit Court to transfer the paternity and custody action to the Elmore Circuit Court. " ' "The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ' " '(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 Inverness Constr. Co., 775 So. 2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So. 2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So. 2d 960, 962 (Ala. 1999)." ' "Ex parte Vest, 68 So. 3d 881, 884 (Ala. Civ. App. 2011) (quoting Ex parte Children's Hosp. of Alabama, 931 So. 2d 1, 5-6 (Ala. 2005))." Ex parte M.A.G., 160 So. 3d 22, 24 (Ala. Civ. App. 2014). In addition, " '[t]his Court reviews mandamus petitions seeking review of a venue determination by asking whether the trial court exceeded its discretion in granting or denying the motion for a change of venue.' Ex parte Perfection Siding, Inc., 882 So. 2d 307, 310 (Ala. 2003). Regarding such a motion that does not involve an issue of forum nonconveniens, a change of venue 'is appropriate only if the venue in which [the plaintiff] originally filed its action was improper.' Ex parte Sierra Dev., Inc., 652 So. 2d 251, 253 (Ala. 1994)." Ex parte L.B., 304 So. 3d 222, 225 (Ala. Civ. App. 2020). We note that the Perry Circuit Court did not receive oral testimony concerning venue. Thus, the ore tenus presumption of correctness does not apply to the 8 CL-2026-0809 Perry Circuit Court's decision concerning venue. See Ex parte K.S., [Ms. CL-2025-1024, Feb. 20, 2026] ___ So. 3d ___, ___ (Ala. Civ. App. 2026) (applying the ore tenus standard of review to a trial court's order denying a motion for a change of venue based on oral testimony). Initially, we note that venue in paternity actions is governed by Ala. Code 1975, § 26-17-605, a part of the Alabama Uniform Parentage Act ("the AUPA"), Ala. Code 1975, § 26-17-601 et seq.; § 26-17-605 provides, in relevant part, that "[v]enue for a proceeding to adjudicate parentage is in the county of this state in which" either the child resides or the defendant, in this case the father, resides. Despite the father's assertion, there is no requirement in § 26-17-605 requiring the mother to have maintained a residence in Perry County in the six months preceding the filing of her petition. However, "[w]hen ruling on a motion to transfer an action to another venue, the trial court must determine whether venue was proper at the time the action was commenced." Ex parte K.S., ___ So. 3d at ___ (citing Ex parte Canady, 563 So. 2d 1024, 1025 (Ala. 1990)) (emphasis added). Thus, the central issue in this case is whether the 9 CL-2026-0809 child was residing in Perry County or Elmore County at the time the mother commenced her paternity and custody action. 5 "Alabama, and, indeed, most jurisdictions, consider the terms 'residence' and 'domicile' to be synonymous, ' "denot[ing] the place where the person is deemed in law to live and may not always be the place where the person is actually dwelling." ' [Ex parte L.B.,] 304 So. 3d [222,] 226-27 [(Ala. civ. App. 2020)] (quoting Ex parte Sides, 594 So. 2d 93, 95 (Ala. 1992))." Id. at ___. Further, " ' "[a] person's domicile is that place in which his habitation is fixed, without any present intention of removing, and it embraces (1) the fact of residence and (2) the intention to remain. As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact. Lucky v. Roberts, 211 Ala. 578, 580, 100 So. 878, 879 [(1924)], and cases cited." ' " Id. (quoting Ex parte L.B., 304 So. 3d at 227, quoting in turn Ex parte Weissinger, 247 Ala. 113, 117, 22 So. 2d 510, 514 (1945)). Although the burden is on the father to prove that venue is improper in Perry County, we note that the mother, as the party who claimed a change in domicile, has the burden of establishing that change, and, " ' " 'where facts are conflicting, the presumption is strongly in favor of an original, or former, 5Neither party disagrees that the father is a resident of Elmore County. 10 CL-2026-0809 domicile, as against an acquired one.' " ' " Ex parte L.B., 304 So. 3d at 227 (citations omitted). The father directs this court to what he characterizes as the "incontrovertible evidence" that he presented to the Perry Circuit Court that, he asserts, establishes that the child was a resident of Elmore County at the time the mother commenced her paternity and custody action. That evidence includes the child's attendance records at Holtville Elementary School in Elmore County between August 2021 and May 2026 and receipts demonstrating that the child participated in extracurricular actives in Elmore County between January 2021 and August 2026, primarily during the father's custodial periods. The father also notes that the mother's driver's license lists an Elmore County address as her residence and that a 2025 tax-revenue statement names the mother as an owner of an Elmore County property. The mother generally argues that the child is a resident of Perry County because, she says, she was domiciled in Perry County at the time she initiated the action and because, as the child's sole legal parent at that time, the child's domicile is the same as her domicile. The mother directs this court to her affidavit, attached to her supplemental response 11 CL-2026-0809 to the father's motion to change venue, in which she states that she and the child relocated to Perry County sometime in 2025 and continued to reside there at the time that she filed her petition seeking an adjudication of paternity and custody of the child. The mother also points out that she was married in Perry County in April 2026 and that, in the weeks before commencing the paternity and custody action, she had requested that her mail be forwarded to a Perry County address. Notwithstanding the father's assertions contesting when the mother relocated to Perry County, we observe that the mother's argument that the child must be domiciled in Perry County because she is domiciled in Perry County is without merit. Although the United States Supreme Court has observed that the domicile of children of unwed parents has traditionally been determined by the domicile of their mother, see Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), we have not located any binding authority that requires such children's domicile to be the same as their mother's domicile in the face of evidence to the contrary. 6 We note that the Perry Circuit Court and 6The mother offers one additional case -- Ex parte J.R.C., 349 So. 3d 249 (Ala. Civ. App. 2021) -- in support of her assertion that the child is domiciled in Perry County because she is domiciled in Perry County. 12 CL-2026-0809 the mother appear to have placed some significance on our statement in Ex parte Newmeyer that the mother is the child's sole legal parent. ___ So. 3d at ___ n.3. To be clear, the mother is the sole legal parent of the child pending any adjudication of paternity and, as we stated in Ex parte Newmeyer, had the authority to enroll the child in a Perry County school, provided that the child was eligible to be enrolled. However, our statement regarding the mother's status as sole legal parent was not a conclusion that the child resided in Perry County at the time that the mother filed her petition, and our recognition of the mother's status did not amount to a determination that the child's domicile was that of the mother's simply because the mother was the child's sole legal parent. 7 However, there was no dispute in Ex parte J.R.C. regarding the domicile or residency of the children at issue in that case or of the mother with whom the children lived. Thus, we fail to see the applicability of Ex parte J.R.C. to the present case. 7We also note that the Perry Circuit Court relied on Moss v. Ingram, 246 Ala. 214, 20 So. 2d 202 (1944), in stating that the domicile of the mother is the domicile of the child. Moss concerned a custody dispute between a mother who had been awarded custody of a child pursuant to a divorce judgment that had been entered in Alabama and in which the Alabama court retained jurisdiction over the child and the mother's stepfather, who had purported to adopt the child in Mississippi after the entry of the Alabama divorce judgment. Thus, Moss stands for the proposition that, "where parents are separated by judicial decree or divorce and the custody of a child is awarded to the mother, or where a 13 CL-2026-0809 The documentary evidence before this court indicates that the child attended school in Elmore County during the entirety of the 2025-2026 academic year, which includes the period after the mother purportedly moved with the child to Perry County and the periods immediately before and immediately after she filed her petition in the Perry Circuit Court. The mother does not indicate in her affidavit that she transported the child from her new residence in Perry County to school in Elmore County. 8 We take note that the father has presented documentary evidence indicating that the child was participating in extracurricular activities in Elmore County, some of which appear to have been weekly father abandons the mother and child, the child's domicile follows that of the mother." Allman v. Register, 233 N.C. 531, 534, 64 S.E.2d 861, 862 (1951). We find Moss to be distinguishable from the present case. No prior judgment awarding custody of the child to either parent exists in the present case, and this case contains no indication that the father has abandoned the child at any point in the child's life. 8The mother would have been required to drive approximately 65 miles, or 80 minutes, each morning to deliver the child to school from her new residence in Perry County. See Davis v. Davis, 317 So. 3d 47, 58 n.7 (Ala. Civ. App. 2020) ("A court may judicially notice the distance between two cities."); see also American Auto. Ins. Co. v. Carson, 212 Ala. 293, 293, 102 So. 219, 220 (1924) ("Courts take judicial knowledge of the locations of [two cities] and the approximate distance between the two points."), and Mann v. Mann, 725 So. 2d 989, 993 (Ala. Civ. App. 1998) (judicially noticing the travel time between cities and citing Carson). 14 CL-2026-0809 activities, at the time the mother filed her petition and that the child continued to do so after the petition was filed. 9 We also observe that the child has spent significant time with the father and that the father has maintained, and the mother has not denied, that he and the mother " 'exercised 50/50 custodial time [with the child] since he was 2 years of age.' " Ex parte Newmeyer, ___ So. 3d at ___; see also Pace v. Smith, 280 So. 3d 428, 429 n.1 (Ala. Civ. App. 2019) (noting an appellate court has judicial knowledge of its records with reference to its previous consideration of litigation presently before it). Thus, the evidence before us indicates that the child was a resident of Elmore County at the time the mother filed her petition in the Perry Circuit Court. Accordingly, we conclude that the Perry Circuit Court exceeded its discretion in denying the father's motion to transfer the paternity and custody action to the Elmore Circuit Court. Ex parte L.B., 304 So. 3d at 225. Having determined that the Perry Circuit Court abused its discretion in denying the father's motion to transfer the paternity and custody action to the Elmore Circuit Court, we grant the father's petition 9We acknowledge that some of those activities likely occurred during the father's custodial periods. 15 CL-2026-0809 for a writ of mandamus and instruct the Perry Circuit Court to vacate its July 31, 2026, order and to enter an order transferring the action to the Elmore Circuit Court. PETITION GRANTED; WRIT ISSUED. Moore, P.J., and Hanson, Fridy, and Bowden, JJ., concur. 16