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Ex parte Dozier

Alabama Court of Civil Appeals

December 5, 2014

Ex parte Dale W. Dozier; In re: Diane L. Dozier
v.
Dale W. Dozier

As Corrected October 15, 2015.

(Russell Circuit Court, DR-09-230.02).

PETITION GRANTED; WRIT ISSUED.

Diane L. Dozier, pro se.

Eric B. Funderburk of Law Offices of Funderburk & Lane, Phenix City, for petitioner.

Judge Albert L. Johnson, Phenix City, as respondent.

Pittman, Moore, and Donaldson, JJ., concur. Thompson, P.J., concurs in the result, without writing.

Page 674

PETITION FOR WRIT OF MANDAMUS

THOMAS, Judge.

Dale W. Dozier (" the former husband" ) petitions this court for a writ of mandamus directing the Russell Circuit Court to dismiss, pursuant to Ala. Code 1975, § 6-5-440, the contempt petition filed in that court by Diane L. Dozier (" the former wife" ). We grant the former husband's petition and issue the writ.

The former husband and the former wife were divorced by a judgment of

Page 675

the Russell Circuit Court entered in February 2010. The divorce judgment ordered the former husband to pay periodic alimony to the former wife. On October 8, 2013, the former husband filed a petition in the Lee Circuit Court in which he sought the termination of his periodic-alimony obligation based on his allegation that the former wife had been cohabiting with a member of the opposite sex in Lee County; in the alternative, he sought a modification of his periodic-alimony obligation. See Ala. Code 1975, § 30-2-55 (requiring that periodic alimony terminate when the payor spouse proves that the payee spouse has remarried or is cohabiting with a member of the opposite sex); Ex parte Ward, 782 So.2d 1285, 1288 (Ala. 2000) (quoting Russell v. Russell, 586 So.2d 12, 13 (Ala.Civ.App. 1991)) (noting that " 'no [periodic] alimony accrues or matures beyond the time that ... cohabitation began'" ); Rose v. Rose, 70 So.3d 429, 435 (Ala.Civ.App. 2011) (noting that a " trial court is required to terminate payment of [periodic alimony] as of the time cohabitation begins" ). The former wife, who, according to the materials before this court, resides in Lee County, was served with the former husband's petition on August 22, 2014.[1] Seven days later, on August 29, 2014, the former wife, acting pro se, filed in the Russell Circuit Court a petition seeking to hold the former husband in contempt for failing to pay periodic alimony; apparently, the former husband had unilaterally decided to stop paying that obligation. The former husband filed a motion to dismiss the former wife 's petition, which the Russell Circuit Court denied on September 30, 2014. The former husband timely filed this petition for the writ of mandamus with this court.

" A writ of mandamus is an extraordinary remedy, and it will be 'issued only when 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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993). A writ of mandamus will issue only to compel the exercise of a trial court's discretion; it will not issue to control or to review a court's ...

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