Melanie B. Paulk
Robert A. Paulk
from Mobile Circuit Court (DR-02-500958.07)
B. Paulk ("the mother") appeals from an order
entered by a judge who had retired from the Mobile Circuit
Court ("the trial court") on January 11, 2017, on
remand from this court's decision in Paulk v.
Paulk, 217 So.3d 899 (Ala. Civ. App. 2016). In
Paulk, this court reversed the trial court's
July 21, 2015, judgment to the extent that that judgment
"found the mother in contempt of court and insofar as it
offset the amount the mother owed for the [parties']
children's activity fees, books, and uniforms associated
with their attendance at UMS-Wright Preparatory School
against the amount the father[, Robert A. Paulk, ] owed for
child support." 217 So.3d at 903. This court instructed
the trial court, on remand, to calculate the amounts the
parties owe. Id.
this court's reversal in Paulk, the mother
filed, on November 3, 2016, a motion requesting the trial
court to enter an order in accordance with this court's
opinion. On November 18, 2016, the mother filed a motion
requesting that the case be transferred to Judge Walter
Honeycutt due to the retirement of Judge Donald Banks, the
judge who had heard the case.
January 10, 2017, Judge Honeycutt entered an order on remand.
On January 11, 2017, that order was set aside as having been
entered as the result of a clerical error. That same day, a
new order, signed by Retired Judge Banks, was entered. On
February 9, 2017, the mother filed a postjudgment motion and
an amended postjudgment motion. The mother's postjudgment
motion, as amended, was denied by Retired Judge Banks on
February 15, 2017. On March 25, 2017, the mother filed her
notice of appeal.
appeal, this court, ex mero motu, raised the jurisdictional
issue of the effect of Judge Banks's retirement on the
validity of the January 11, 2017, order entered by him and
requested that the parties brief that issue. See,
e.g., Ex parte K.R., 210 So.3d 1106, 1112
(Ala. 2016) (holding that issue of validity of appointment of
judge is jurisdictional and may be raised ex mero motu at any
time). Both parties filed letter briefs with this court.
Ex parte K.R., the probate judge assigned to that
case recused himself. The recusing judge ordered that the
clerk of the probate court assign the case to "'one
of the temporary judges of probate appointed by the Presiding
Judge of the Circuit Court of Mobile County,
Alabama.'" 210 So.3d at 1108. The clerk of the
probate court assigned the case to J. Michael Druhan, a
Mobile attorney, who then entered orders in the case;
however, the presiding judge of the Mobile Circuit Court had
not appointed Druhan to serve as a temporary probate judge,
pursuant to § 12-1-14.1, Ala. Code 1975, and the Chief
Justice of the Alabama Supreme Court had not appointed Druhan
to serve as a judge, pursuant to § 12-2-37, Ala. Code
1975. Id. K.R filed a petition for a writ of
mandamus with our supreme court. Our supreme court concluded
that, in the absence of a valid appointment, Druhan lacked
the authority to enter any orders in the case and that the
orders entered by Druhan were void. 210 So.3d at 1113.
present case, Judge Banks retired effective December 31,
2015. The methods for the appointment of a temporary circuit
judge are found in § 12-1-14, Ala. Code 1975, and in
§ 12-1-14.1, Ala. Code 1975. Section 12-1-14.1(a)
provides, in pertinent part: "At the request of the
affected judge in a particular circuit, the presiding circuit
court judge of the circuit may appoint and commission a
special circuit court judge, special district court judge, or
special judge of probate for temporary service." Section
12-1-14 provides, in pertinent part: "Should the need
for special judges in the circuit court, district court or
probate court arise, the Supreme Court may appoint and
commission special circuit judges or special district court
judges or special probate judges for temporary service."
record on appeal, there is no order indicating that Retired
Judge Banks was appointed to serve as a temporary judge in
accordance with the law, nor has either party contended that
there was a valid appointment. Furthermore, neither party has
cited this court to any legal basis upon which a retired
judge may enter an order without a valid appointment.
Therefore, we conclude that Retired Judge Banks lacked
authority to enter the January 11, 2017, order, and,
therefore, that order is void. K.R., 210 So.3d at
1113. Because a void judgment will not support an appeal,
see, e.g., Colburn v. Colburn, 14
So.3d 176, 179 (Ala. Civ. App. 2009), we dismiss this appeal,
albeit with instructions for the circuit court to set aside
the void order entered by Retired Judge Banks.
that, because the order entered by Retired Judge Banks is
void, the case remains pending in the trial court for
disposition in accordance with our earlier remand
instructions. Nothing in this opinion should be construed as
preventing or requiring the appointment of Retired Judge
Banks as a special temporary judge to dispose of this case.
DISMISSED WITH INSTRUCTIONS.
Thompson, P.J., and Pittman, Thomas, and ...