Ex parte Kevin Dwayne Allison, Jr.
Christy Michelle Helms In re: Kevin Dwayne Allison, Jr.
FOR WRIT OF MANDAMUS, Marshall Circuit Court, DR-16-269
the second time that Kevin Dwayne Allison, Jr. ("the
husband"), has appeared before this court to challenge
an order of the Marshall Circuit Court ("the trial
court") in the husband's divorce action against
Christy Michelle Helms ("the wife"). See
Allison v. Helms, [Ms. 2160017, February 10, 2017] __So.
3d __ (Ala. Civ. App. 2017). In Allison, the husband
appealed a September 19, 2016, order of the trial court that
"'FINAL ORDER OF DIVORCE filed by ALLISON KEVIN
DWAYNE is hereby DENIED.
"The pleadings are inadequate and incomplete. The
parties are highly encouraged to seek legal
__So. 3d at __. The husband had construed the order to be an
order dismissing his divorce action. Id. However, we
determined that the trial court's September 19, 2016,
order denying the husband a "final order of
divorce" had not dismissed the action but instead had
indicated that the action was not ripe for the entry of a
judgment, "because the wife had not filed a signed
answer and waiver and because the required 30-day waiting
period had not expired." __So. 3d at __ (citing Ala.
Code 1975, § 30-2-8.1(a) ("A court shall not enter
a final judgment of divorce until after the expiration of 30
days from the date of the filing of the summons and
complaint.")). We dismissed the husband's appeal,
stating in our concluding paragraph that "[t]he
husband's divorce action remains pending in the trial
court, and the action shall proceed to judgment once service
on the wife is perfected." __So. 3d at __.
about March 16, 2017, the husband filed in the trial court a
motion to compel service of the divorce complaint on the
wife. The trial court denied the husband's motion on
March 20, 2017. On April 3, 2017, the husband timely filed
this petition for the writ of mandamus seeking review of the
trial court's March 20, 2017, order. We called for an
answer to the petition, but none was filed. Thus, we take the
averments of fact in the husband's petition as true.
See Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002).
"'A writ of mandamus is an extraordinary remedy that
is available when a trial court has exceeded its discretion.
Ex parte Fidelity Bank, 893 So.2d 1116, 1119 (Ala.
2004). A writ of mandamus is "appropriate when the
petitioner can show (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 BOC Group,
Inc., 823 So.2d 1270, 1272 (Ala. 2001).'
"Ex parte Antonucci, 917 So.2d 825, 830 (Ala.
2005). 'Mandamus will be granted only where an abuse of
discretion is shown.' Ex parte McMahan, 507
So.2d 492, 493 (Ala. 1987)."
Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006).
4(a)(1), Ala. R. Civ. P., provides that, after a complaint is
filed, "the clerk shall forthwith issue the required
summons or other process for service upon each
defendant." The issuance of a summons is a ministerial
duty of the clerk. Lucas v. Belcher, 20 Ala.App.
507, 509, 103 So. 909, 911 (1925) (stating that "issuing
the summons in this case was a ministerial duty imposed upon
... the circuit clerk"). Furthermore, our supreme court
has indicated that the failure of the clerk to promptly issue
a summons is neglect. Horn v. Pope, 205 Ala. 127,
129, 87 So. 161, 163 (1920) (declining to charge the
plaintiff with "the neglect of the clerk in not promptly
issuing a summons after [the plaintiff] had filed his
noted in Allison that the record did not reflect
that the wife had been served with the divorce complaint.
__So. 3d at __. The husband avers that the divorce complaint
has still not been served on the wife, and the attachments to
the husband's petition demonstrate that the trial court
has now denied his request that the circuit clerk proceed
with service of process on the wife. Nothing in the record in
the previous appeal revealed a basis for the failure of the
clerk to serve the divorce complaint on the
husband has demonstrated a clear legal right to have his
divorce complaint served on the wife. We therefore grant the
husband's petition, and we order the trial court to