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Ex parte Williams

Alabama Court of Civil Appeals

May 22, 2015

Ex parte Amy N. Williams
v.
Jeffrey S. Williams In re: Amy N. Williams

          (Montgomery Circuit Court, DR-13-900269).

         Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

          OPINION

         PETITION FOR WRIT OF MANDAMUS

         THOMAS, Judge.

         Amy N. Williams (" the mother" ) seeks a writ of mandamus directing the Montgomery Circuit Court to enter a final judgment of divorce incorporating a settlement agreement that she alleges she and Jeffrey S. Williams (" the father" ) negotiated in October 2013. The facts, as alleged in the mother's mandamus petition, as conceded in the father's answer, and as supported by the attachments to the mother's petition or the father's answer, are as follows.

         In March 2013, the mother filed a complaint seeking a divorce from the father; among other things, she sought custody of the parties' child. The trial court entered a pendente lite order in which, among other things, the mother was awarded pendente lite custody of the child. On October 21, 2013, the parties negotiated a handwritten agreement settling the divorce action (" the 2013 settlement agreement" ); the settlement agreement was read into the record at a hearing conducted on the same date. No written order followed the hearing, and, on November 21, 2013, the mother moved for enforcement of the settlement agreement. The father did not respond to the mother's motion, despite the fact that the trial court had entered an order requiring him to do so within 21 days of the filing of the mother's motion. The trial court did not rule on the mother's motion even after expiration of the 21-day period.

         On February 24, 2014, the mother filed another motion seeking enforcement of the 2013 settlement agreement. The trial court set a hearing on the matter for May 20, 2014. According to the mother, at the May 20, 2014, hearing, the parties again negotiated a settlement of the divorce action (" the 2014 settlement agreement" ). The mother states in her petition that the 2014 settlement agreement was also read into the record, but she has not provided a transcript of the May 20, 2014, hearing in support of her petition. The trial court failed to enter a judgment incorporating the 2014 settlement agreement.

         On October 10, 2014, the mother filed a motion seeking the entry of a final judgment. In that motion, the mother sought the entry of a judgment incorporating the 2014 settlement agreement. The mother further admitted in that motion that she had been arrested for driving under the influence in Florida in April 2014 and that her Alabama driver's license had been suspended for a period of three months beginning in September 2014. In response to the mother's motion, the father requested an emergency hearing and a final hearing. In the father's motion, he alleged that the driver's license suspended; the father also requested emergency pendente lite custody of the child. The parties agree that the trial court held a hearing on October 20, 2014. Neither party has provided a transcript of the October 20, 2014, hearing.

         On January 16, 2015, the trial court entered an order setting the divorce action for a " final hearing of any and all issues" on April 21, 2015. On April 21, 2015, the mother filed a petition for the writ of mandamus in this court.

" 'A writ of mandamus is an extraordinary remedy ... that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner.' Ex parte Edwards, 727 So.2d 792, 794 (Ala. 1998). The petitioner must demonstrate:
" '" (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 Edwards, 727 So.2d at 794 (quoting Ex parte Adams, 514 So.2d 845, 850 (Ala. 1987))."

Ex parte D.J.B., 859 So.2d 445, 448 (Ala.Civ.App. 2003).

         In his answer, the father argues that the mother's petition was untimely filed. He asserts that the mother knew on January 16, 2015, that the divorce action had been set for a " final hearing of any and all issues." Thus, he reasons, the mother should have sought relief from the trial court's failure to rule on the mother's October 2014 motion to enforce the 2014 settlement agreement within 42 days of the January 16, 2015, order setting the final hearing. Furthermore, the father argues that the mother cannot seek to have the trial court enforce the 2013 settlement agreement at this late date because the trial court held at least two hearings after the ...


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