(Elmore Circuit Court, DR-13-900370).
For Petitioner: L. Scott Johnson, Jr., of Johnson & Sipper, LLC, Montgomery.
THOMPSON, Presiding Judge. Pittman, Thomas, Moore, and Donaldson, JJ., concur.
PETITION FOR WRIT OF MANDAMUS
THOMPSON, Presiding Judge.
Willie Jerome Davis (" the husband" ) petitions this court for a writ of mandamus directing the Elmore Circuit Court (" the trial court" ) to enter an order approving the husband's unopposed statement of facts, pursuant to Rule 10(d), Ala. R. App. P.
The materials the husband submitted in support of his petition indicate the following. Laquana Vonsha Davis (" the wife" ) filed a complaint for a divorce in the trial court on December 10, 2013. The husband, who is incarcerated in a federal prison in Kentucky, timely answered the wife's complaint. On January 24, 2014, the trial court entered an order setting a final hearing in the matter for March 5, 2014. However, the materials indicate that the letter mailed to the husband containing that order was returned to the Elmore circuit clerk's office (" the clerk's office" ) because it had an " incomplete name/register number." A stamp on the envelope also states: " Return to sender, insufficient address, unable to forward." Although the postmark is unclear, the envelope is stamped with a date in February 2014. Furthermore, the docket sheet for this case available on the alacourt.com Web site, which contains information and data derived from the State Judicial Information System, includes a " miscellaneous" entry that states " bad address." The husband asserts that that entry reflects that the clerk's office received a return receipt postal card indicating an insufficient address for him.
On March 5, 2014, the hearing was held as scheduled. No recording or transcript of the hearing exists, but it is undisputed that the husband did not participate in the
hearing. On March 6, 2014, the trial court entered a default judgment against the husband and awarded the wife certain real property (" the real property" ) and a settlement check (" the check" ) issued by the United States Department of Agriculture arising out of litigation brought on behalf of African-American farmers. The husband asserts that he has an interest in both the real property and the check. In an affidavit submitted to the trial court, which is included in the materials before this court, the husband stated that, although he is not permitted to leave prison to attend a divorce hearing, prison rules would allow him to testify and take part in such a hearing by telephone.
The husband filed a timely postjudgment motion, which the trial court denied on May 28, 2014. The husband then filed a timely notice of appeal. In this court, the appeal was assigned case number 2130821. After filing the notice of appeal, the husband filed in the trial court a statement of facts, pursuant to Rule 10(d), Ala. R. App. P., which includes his assertion that the clerk's office has a document proving that he did not receive notice of the March 5, 2014, final hearing but has not included that document in the record. Because he did not participate in the hearing, the husband included allegations contained in his answer as part of his statement of facts. The certificate of service for the statement of facts indicates that the attorney for the wife was electronically served with the statement of facts.
On August 7, 2014, the husband filed a motion seeking an order approving his statement of facts. On that same day, he filed a corrected statement of facts. There is no indication that the wife has opposed the husband's Rule 10(d) statement of facts. The record on appeal in case number 2130821 indicates that the husband filed two motions to supplement the record with his statement of facts. On August 29, 2014, the husband filed a renewed motion for an order approving the statement of facts. On September 9, 2014, the trial court denied the motion, but it did not issue its own statement of facts as required by Rule 10(d). Therefore, the husband filed this petition. On October 17, 2014, the husband moved to suspend the time for filing his appellate brief in case number 2130821 because, he said, the trial court had not yet approved the unopposed statement of facts. This court granted the motion on October 20, 2014.
" The standard governing our review of an issue presented in a petition for the writ of mandamus ...