(Jefferson Circuit Court, DR-12-901002.02).
PETITION GRANTED; WRIT ISSUED.
For Petitioner: Jennifer G. Rose of The Rose Law Firm, LLC, Birmingham.
For Respondent: Trey J. Malbrough of The Malbrough Firm, LLC, Birmingham.
THOMAS, Judge. Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.
PETITION FOR WRIT OF MANDAMUS
Keiteria Anderson (" the mother" ) petitions this court for a writ of mandamus directing the Jefferson Circuit Court to set aside its September 16, 2014, " pendente lite" order, which awarded pendente lite custody of her children to Gregory Michael Pratt (" the father" ). After reviewing the petition, the materials submitted in support of the petition, and the father's answer, we grant the petition and issue the requested writ.
On September 3, 2014, the father filed a verified petition seeking to have the mother held in contempt based on her alleged violation of several provisions of the parties' April 2014 divorce judgment. Among other things, the father alleged in the petition that the mother had not permitted him to exercise all the visitation rights provided to him in the judgment and that the mother intended to move from the state with the children. On the same day that he filed his contempt petition, the father filed a verified petition for a " temporary ex parte restraining order" to prevent the mother from leaving the state with the children. The trial court granted the restraining order on September 3,
2014, and the mother was served with the contempt petition, the petition for the restraining order, and the restraining order on September 4, 2014.
On September 10, 2014, the trial court entered an order setting the cause for a hearing to be held on September 16, 2014. The copy of the State Judicial Information System case-detail sheet contained in the exhibits to the mother's petition for the writ of mandamus indicates that the order setting the hearing was transmitted by the trial court clerk. However, the mother did not appear at the September 16, 2014, hearing.
In its " pendente lite" order, entered after the hearing, the trial court noted that it had verified with the clerk that the mother had been provided notice of the hearing. The trial court's order further reports that the trial court had attempted to contact the mother by telephone to inform her that the hearing was being conducted but that the mother did not answer the telephone. The trial court conducted the hearing, and, after considering the father's testimony, found that the mother had violated the divorce judgment in several respects regarding visitation. The trial court then awarded the father pendente lite custody of the parties' children without indicating a basis for the transfer of custody. The order reserved the issues of pendente lite child support and pendente lite visitation and noted that the " cause shall be set for review by separate order."
Later on September 16, 2014, after she received the telephone message left by the trial court, the mother, acting pro se, filed a handwritten statement requesting a hearing. In that statement, the mother stated that she had been unaware of the hearing held earlier that day. The mother later sought the aid of an attorney, ...