(Russell Circuit Court, DR-12-177).
PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
Judge. Thompson, P.J., and Pittman and Thomas, JJ., concur.
Donaldson, J., concurs specially.
FOR WRIT OF MANDAMUS
Williams (" the husband" ) seeks a writ of mandamus
from this court directing the Russell Circuit Court ("
the trial court" ) to vacate its orders entered in
response to the September 27, 2013, postjudgment motion filed
by Chevon Williams (" the wife" ) for lack of
August 29, 2013, the trial court entered a judgment ("
the divorce judgment" ), divorcing the husband and the
wife and, among other things, containing provisions regarding
custody of the parties' minor child, visitation between
the husband and the child, and division of the real and
personal property belonging to the parties. On September 27,
2013, the wife filed a postjudgment motion, asserting that
the trial court had erred by ordering that the husband's
child-support payments were to commence on September 5, 2014,
rather than on September 5, 2013; by not entering a
child-support withholding order concerning the husband's
child-support obligation; by not awarding the wife a portion
of the husband's retirement and survivor benefits; by
failing to specify in the divorce judgment that the wife was
to be entitled to claim the parties' minor child for
income-tax purposes; by failing to specify in the divorce
judgment which party was to be responsible for the
child's health insurance; and by failing to reserve the
issue of postminority educational support. The wife also
asserted that the husband had violated portions of the
divorce judgment and that the evidence presented at trial,
and newly discovered evidence, established that the husband
had misrepresented to the court the status of the mortgage
payments on the marital residence. The husband filed a
response to the wife's postjudgment motion.
December 18, 2013, the trial court set the wife's
postjudgment motion for consideration at a status docket on
January 28, 2014. On February 13, 2014, the wife filed a
motion for a continuance; the trial court entered an order on
February 21, 2014, rescheduling the matter for consideration
at a status docket on March 26, 2014. On June 27, 2014, the
trial court entered an order setting the wife's motion
for a hearing on August 26, 2014. On August 26, 2014, the
trial court granted the wife's motion for a continuance
and reset the hearing for October 2, 2014. On October 2,
2014, the trial court entered an order granting, in part, the
wife's postjudgment motion and amending the divorce
judgment to provide that the payment of child support was to
begin on September 5, 2013, rather than on September 5, 2014,
as had been stated in the divorce judgment. The trial court
later amended that order on October 6 and 9, 2014, to correct
clerical errors. In each of those orders, the trial court
noted that the remaining issues raised in the wife's
postjudgment motion would be heard at a later date.
March 4, 2015, the husband filed in the trial court a "
motion to vacate orders and motion to dismiss for lack of
subject matter jurisdiction." In his motion, the husband
argued that the wife's postjudgment motion had been
operation of law on December 26, 2013, that the trial
court's orders of October 2, October 6, and October 9,
2014 (" the October 2014 orders" ), were therefore
void, and that all issues raised in the mother's
postjudgment motion -- with the exception of the issue
concerning the clerical error regarding the starting date for
the child-support obligation, which the husband conceded was
susceptible to the trial court's review pursuant to Rule
60(a), Ala. R. Civ. P. -- were no longer pending before the
trial court after December 26, 2013. The trial court entered
an order on March 5, 2015, which stated, in pertinent part:
" 2. That the [wife's postjudgment motion] was filed
on September 27, 2013. The Court continued the Motion at the
request of both parties and finally entered an Order
addressing a portion of the Motion on October 6, 2014, and
again on October 9, 2014, and in each Order issued in October
2014 the Court indicated that the remaining issues would be
heard at a later date.
" 3. That [the husband] moved to dismiss all other
issues and in support thereof argued that all other issues
... were denied by operation of law on December 27th,
2013, pursuant to Rule 59.1, Alabama Rules
of Civil Procedure. The Court denies this motion and finds
that on October 9, 2014, the parties appeared with previous
counsel and agreed for the issues raised in [the wife's]
post-judgment motion to be set for a hearing. The Court finds
that this was ...