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Ex parte Akl

Alabama Court of Civil Appeals

September 15, 2017

Ex parte Charbel Paul Akl
v.
Yareima Carmen Valecillos Akl In re: Charbel Paul Akl

         Jefferson Circuit Court, DR-15-900861

          PETITION FOR WRIT OF MANDAMUS

          DONALDSON, JUDGE.

         Charbel Paul Akl ("the husband") and Yareima Carmen Valecillos Akl ("the wife") are parties to a pending case in the Jefferson Circuit Court ("the trial court") involving the dissolution of their marriage and the custody of their child. The husband has petitioned this court for a writ of mandamus directing the trial court to vacate orders entered on July 6 and July 24, 2017. The husband asserts that the trial court entered the orders without supporting evidence and in violation of his due-process rights. This court called for answers to the petition but received none; thus, we must accept as true the averments in the husband's mandamus petition. See Ex parte Turner, 840 So.2d 132, 134-35 (Ala. 2002)(holding that when a respondent fails to challenge factual allegations contained in a petition for the writ of mandamus, the appellate court accepts as true the factual statements in the petition). Based on the materials before this court, and for the reasons discussed below, we deny the husband's petition.

         According to the materials submitted by the husband with his petition, a hearing was held in the trial court on September 26 and 27, 2016. Afterward, a pendente lite order was entered in October 2016 by Judge Patricia Stephens granting the husband sole physical custody of the child and granting the wife visitation pending the final hearing. The trial court also ordered the wife to pay child support in the amount of $78.07 each month to the husband, which was a deviation from the child-support guidelines. According to the husband's petition, Judge Stephens thereafter recused herself from the action, and, after the other circuit judges within the Jefferson Circuit recused themselves, Judge Tim Riley was appointed to preside over the case.[1] On May 17, 2017, Judge Riley set the case for a hearing "on any pending motions and all pretrial matters on June 15, 2017." According to the husband, Judge Riley held a hearing on June 15, 2017, at which only the guardian ad litem for the child testified.

         On July 6, 2017, Judge Riley entered an order. For purposes of this petition, the pertinent parts of the order provided:

"This case came on to be heard on all pending motions and testimony on June 15, 2017. Present were the [husband] with his attorney, Hon. Virginia Meigs, and [the wife] with her attorney, Hon. Mickey Johnson.
"The Court heard testimony from the child's Guardian Ad Litem, Hon. Jackie Morrette. The Court also took judicial knowledge of all the former pleadings, complaints, counterclaims, and sworn affidavits by the parties, prior orders by the Daily Master, Hon. Sara Senesac, Circuit Judge Patricia Stephens, and the transcript of sworn testimony taken before Hon. Patricia Stephens on September 26, 2016, and received by the Court after the trial along with all other affidavits and motions in the case.
"The case was assigned by the Chief Justice of the Alabama Supreme Court to the undersigned after all Jefferson County judges recused and judges of the surrounding counties recused.
"....
"Both parties have asked for a divorce and both parties show no indication by their actions, pleading or court history of any possible reconciliation after almost three years apart. The parties and child have lived over five years in Jefferson County, Alabama, where the separation took place. Both parties stated in open court that they desired a divorce on June 15, 2017.
"The parties do not have any jointly acquired real estate, but do rent separate residences or apartments. The husband works as an engineer with Harbert Co. and the [wife] has had part-time jobs.
"Both parties seek sole custody of the child to the exclusion of the other having limited visitation rights. ...
"ORDER
"1. The parties are forever divorced from each other based on irreconcilable differences and incompatibility of temperament, and ...

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