May 22, 2015
Ex parte Amy N. Williams
Jeffrey S. Williams In re: Amy N. Williams
(Montgomery Circuit Court, DR-13-900269).
P.J., and Pittman, Moore, and Donaldson, JJ., concur.
FOR WRIT OF MANDAMUS
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
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.
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
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.
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.
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 mother initially
sought to have the 2013 settlement agreement enforced in
November 2013 and because the mother had last sought to have
the 2014 settlement agreement enforced.
21(a)(3), Ala. R. App. P., provides that a petition for the
writ of mandamus " shall be filed within a reasonable
time." The rule specifically provides that " [t]he
presumptively reasonable time for filing a petition seeking
review of an order of a trial court or of a lower appellate
court shall be the same as the time for taking an
appeal." Rule 21(a)(3). However, the rules does not
explain how to failure to rule on a motion is timely filed.
Committee Comments to Amendments to Rule 21(a) and 21(e)(4)
Effective September 1, 2000, state that " [a] petition
for a writ of mandamus based on a trial court's failure
to rule on a matter does not have a benchmark date from which
to begin [to] measure a reasonable time." However, the
comments do not leave us without any guidance. The comments
explain that an appellate court may find a petition for the
writ of mandamus to be untimely even if it is filed within a
presumptively reasonable time, " for example, when the
petition is filed shortly before trial, yet several days or
even weeks after the adverse ruling." If that is so,
then we can certainly consider the timing of the mother's
petition when there is no presumptively reasonable time for
petition, the mother seeks an order from this court requiring
the trial court to enforce the 2013 settlement agreement,
which she first sought enforcement of in November 2013, 17
months before the mother filed her petition in this court.
The mother did not seek mandamus review of the trial
court's failure to rule on her multiple motions to
enforce either settlement agreement in either 2013 or 2014.
She participated in at least two hearings after filing her
initial motion seeking enforcement of the 2013 settlement
agreement, one of which, she alleges, produced the 2014
settlement agreement that she last sought enforcement of by a
motion filed on October 10, 2014, in the trial court. Despite
having knowledge in January 2015 that the divorce action was
set for a " final hearing of any and all issues" on
April 21, 2015, the mother waited until the day of trial to
file her petition for the writ of mandamus. We cannot
conclude that the mother's extensive delay in seeking
relief from the trial court's failure to rule on a
November 2013 motion to enforce the 2013 settlement agreement
should be countenanced despite the fact that the lack of an
order prevents determination of the presumptively reasonable
time for the filing of the mother's petition under Rule
21(a)(3). Accordingly, under these circumstances, we conclude
that the mother's petition should be dismissed as having
been untimely filed.
P.J., and Pittman, Moore, and Donaldson, JJ., concur.