Madison
Circuit Court, DR-13-900006.01
PETITION FOR WRIT OF MANDAMUS
MOORE,
Judge.
Carl
Michael Seibert ("the former husband") petitions
this court for a writ of mandamus directing the Madison
Circuit Court ("the trial court") to set aside as
void two orders entered in case number DR-13-900006, the
divorce action between the former husband and Lorrie Ann
Fields Seibert ("the former wife"). We deny the
petition.
Background
and Procedural History
On
October 5, 2012, the circuit-court judges of the Twenty-Third
Judicial Circuit, of which the trial court is a part, adopted
a "standing pendente lite order" that is "to
be considered entered in every original contested divorce
action filed in [that] Judicial Circuit without further
order." On January 2, 2013, the former wife filed in the
trial court a complaint seeking a divorce from the former
husband based on the ground of incompatibility of
temperament.[1] The former wife served the former husband
with the complaint and a copy of portions of the standing
pendente lite order, including a provision prohibiting the
former wife and the former wife from harassing each other.
On
August 12, 2013, the former wife filed a motion seeking to
hold the former husband in contempt for, among other things,
violating the harassment provision in the standing pendente
lite order. On August 20, 2013, the trial court entered an
order adopting the standing pendente lite order and stating
that it considered the standing pendente lite order "to
have come into full force and effect with the filing of [the
divorce] action." On September 4, 2013, the former
husband answered the former wife's motion for contempt,
stating, among other things, that the standing pendente lite
order had not been in force until it was adopted by the trial
court on August 20, 2013. Subsequently, the former wife filed
three more motions requesting that the former husband be held
in contempt for violating the standing pendente lite order;
the former husband also filed a motion to hold the former
wife in contempt for violating the standing pendente lite
order. After a trial, the trial court entered a judgment
divorcing the parties and denying all the motions for
contempt. The former husband appealed, and this court
affirmed the divorce judgment, without an opinion.
Seibert v. Seibert (No. 2140062, July 31, 2015), ___
So.3d ___ (Ala. Civ. App. 2015) (table).
On
December 6, 2013, the former husband was indicted on a charge
of aggravated stalking in the second degree; an element of
that crime is that the defendant's conduct must have
"violate[d] [a] court order or injunction." Ala.
Code 1975, § 13A-6-91.1. The former husband asserts
that, through discovery, he was informed that he had been
accused of stalking the former wife in violation of the
standing pendente lite order. The former husband moved to
dismiss the indictment on the basis that the standing
pendente lite order was void; that motion was denied. The
former husband did not seek mandamus review of the order
denying the motion to dismiss, and the criminal action
proceeded to trial. According to the former husband, the
judge presiding over the criminal action declared a mistrial
after the jury reported that it could not reach a unanimous
verdict.
At some
point, the former husband filed a modification action,
designated as case number DR-13-900006.01. The trial court
entered a final judgment in the modification action on August
17, 2016. The former husband filed a postjudgment motion in
the modification action on August 22, 2016, seeking to vacate
the standing pendente lite order. The trial court denied that
motion on August 25, 2016. The former husband then filed, on
September 19, 2016, a "motion to reconsider and vacate
plainly void order"; the trial court entered an order
denying that motion on September 20, 2016. The former husband
filed his petition for a writ of mandamus with this court on
October 4, 2016.
Discussion
In his
petition for a writ of mandamus, the former husband seeks an
order from this court compelling the trial court to vacate
the standing pendente lite order entered in case number
DR-13-900006 and the August 20, 2013, order adopting the
standing pendente lite order entered in case number
DR-13-900006. However, the former husband did not file a
motion to vacate those orders in case number DR-13-900006.
The record from that case shows that the trial court entered
a final judgment in case number DR-13-900006 on July 10,
2014, which did not incorporate either of the interlocutory
orders. By operation of law, those interlocutory orders were
superseded by the final judgment and no longer have any legal
effect. See F.M. v. B.S., 170 So.3d 663, 668 (Ala.
Civ. App. 2014).
The
former husband filed his motions to vacate the orders in case
number DR-13-900006.01, the modification action. Assuming the
former husband validly filed his motions in the modification
action, which we do not decide, the former husband has failed
to cite any legal authority by which the trial court could
have vacated the standing pendente lite order and the August
20, 2013, order. Neither Rule 59, Ala. R. Civ. P., nor Rule
60(b), Ala. R. Civ. P., the only legal authorities upon which
the former husband relies, permit a trial court to vacate
interlocutory orders. Both Rule 59 and Rule 60(b) apply
solely to final judgments. See Ex parte Troutman Sanders,
LLP, 866 So.2d 547, 549 (Ala. 2003) (explaining that a
Rule 59 motion cannot be used as a vehicle to attack an
interlocutory order); and EB Invs., L.L.C. v. Atlantis
Dev., Inc., 930 So.2d 502, 508 (Ala. 2005) (pointing out
that Rule 60(b) does not apply to interlocutory orders).
The
former husband complains that, unless the trial court
declares the orders void, he will be subject to continued
criminal prosecution under Ala. Code 1975, § 13A-6-91.1.
Nevertheless, the former husband has failed to show that the
trial court had jurisdiction to vacate the orders and a
mandatory duty to vacate the orders in case number
DR-13-900006.01.
"A writ of mandamus is an extraordinary remedy available
only when the petitioner demonstrates: '"(1) a clear
legal right 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)
the properly invoked jurisdiction of the court."'
Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003)
(quoting Ex parte BOC Group, Inc., 823 So.2d 1270,
1272 (Ala. 2001))."
Ex parte T.J., 74 So.3d 447, 450 (Ala. Civ. App.
2011) (emphasis added). We conclude that, if §
13A-6-91.1 requires proof of the violation of a valid court
order, which we do not decide, but see Morton v.
State, 651 So.2d 42, 46-47 (Ala.Crim.App.1994), the
former husband cannot negate that essential element of the
criminal prosecution through the instant petition for a writ
of mandamus. However, our opinion does not preclude the
former husband from seeking appellate review of any order or
judgment ...