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Ex parte Griffith

Alabama Court of Civil Appeals

April 3, 2015

Ex parte Tammy Griffith; (In re: Wyles Griffith,
v.
Tammy Griffith)

(Cullman Circuit Court, DR-07-900032.01).

For Petitioner: Horace V. O'Neal, Jr., Leo & O'Neal, Birmingham.

For Respondent: Finis E. St. John, St. John & St. John, LLC, Cullman.

MOORE, Judge. Thompson, P.J., and Pittman and Donaldson, JJ., concur. Thomas, J., recuses herself.

OPINION

Page 886

PETITION FOR WRIT OF MANDAMUS

MOORE, Judge.

In advance of a scheduled trial on her motion to modify certain restrictions on her visitation with her three minor children, Tammy Griffith (" the mother" ) filed a motion seeking the recusal of Judge Greg Nicholas, the judge assigned to preside over the action and the presiding judge of the Cullman Circuit Court, which motion was granted on January 7, 2015. The next day, Judge Martha Williams, the only other circuit judge in that circuit, also recused herself from the case, returning the case to Judge Nicholas for reassignment. On January 12, 2015, Judge Nicholas entered an order purporting to appoint Cullman District Judge Wells R. Turner III as an ex officio circuit judge and to reassign the case to Judge Turner. On January 20, 2015, the mother filed a motion objecting to the reassignment of the case to Judge Turner and seeking his recusal. Judge Turner denied that motion on January 26, 2015.

On February 10, 2015, the mother filed a petition for a writ of mandamus directing Judge Turner to recuse himself and/or directing Judge Nicholas to vacate his order reassigning the case to Judge Turner. For the following reasons, we grant the petition in part by issuing an writ ordering Judge Nicholas to vacate his order reassigning the case to Judge Turner, which moots that part of the petition requesting the issuance of a writ directing Judge Turner to recuse himself.

" Our supreme court has set forth the following standard by which this court considers a petition for a writ of mandamus:

" 'Mandamus is a drastic and extraordinary writ, to be issued only where 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 Integon Corp., 672 So.2d 497, 499 (Ala. 1995). 'The petitioner bears the burden of proving each of these elements before the writ will issue.' Ex parte Glover, 801 So.2d 1, 6 (Ala. 2001). Moreover, 'in mandamus proceedings, we indulge all reasonable presumptions favoring the correctness of the judgment appealed from, and the petitioner must overcome this presumption by satisfactorily countervailing evidence.' Ex parte Boykin, 568 So.2d 1243, 1244 (Ala.Civ.App. 1990). '[T]he writ is not to be granted unless there is a clear showing of error in the trial court.' Ex parte Shepherd, 560 So.2d 1089, 1090 (Ala.Civ.App. 1990)."

Ex parte Everest Nat'l Ins. Co., 80 So.3d 954, 956-57 (Ala.Civ.App. 2011).

In Ex parte Jim Walter Homes, Inc.,776 So.2d 76 (Ala. 2000), the only circuit-court judge in Sumter County recused himself and reassigned the case to a district-court judge in Greene County. Id. at 77. In addressing whether ...


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