Circuit Court, DR-11-202
PETITION FOR WRIT OF MANDAMUS
Simone Curtis ("the wife") has filed a petition for
the writ of mandamus seeking to have this court direct the
Talladega Circuit Court ("the trial court") to
vacate its September 18, 2017, order staying the execution of
a judgment entered in a divorce action between the wife and
Barry G. Curtis ("the husband") pending the outcome
of the appeal of that judgment. Because the husband has not
executed a supersedeas bond as required by Rule 8, Ala. R.
App. P., the husband is not entitled to a stay, and we
therefore grant the wife's petition and issue the writ.
parties' underlying divorce proceedings were initiated in
May 2011. On July 28, 2015, the trial court entered an order
that, among other things, divorced the parties and divided
their property. In September 2015, the husband appealed to
this court. In May 2016, this court dismissed the
husband's appeal as having been taken from a nonfinal
judgment after determining that a contempt claim remained
pending in the trial court. Curtis v. Curtis, 210
So.3d 1120, (Ala. Civ. App. 2016)("Curtis
on the materials submitted with the wife's mandamus
petition, it appears that the trial court entered a final
judgment on January 6, 2017, amending the July 28, 2015,
order to expressly deny all other relief requested by the
parties that was not specifically addressed in the judgment.
As part of the divorce judgment, the wife was awarded, among
other things, $500, 000 in alimony in gross, payable in
monthly installments of $3, 000; certain real property;
certain proceeds from the sale of the parties' real
property; $10, 000 in attorney's fees; and a monetary
award in the amount of $9, 682, representing an amount
intercepted by the federal Internal Revenue Service based on
the husband's failure to timely and accurately file the
parties' joint income-tax return.
February 13, 2017, the husband filed a notice of appeal to
this court, which was docketed as appeal no. 2160315. The
husband did not execute a supersedeas bond. The wife filed a
cross-appeal, which was docketed as appeal no. 2160327 and
which this court, ex mero motu, consolidated with the
husband's appeal (the husband's appeal and the
wife's cross-appeal are hereinafter referred to
collectively as "Curtis II').
2017, after the notices of appeal were filed in Curtis
II, the wife apparently served processes of garnishment
directed to four nonparty businesses. On June 14, 2017, the
husband filed a motion in the trial court seeking to quash
the processes of garnishment and to stay any further
execution of the final judgment pending the conclusion of the
appeals in Curtis II. A copy of the garnishment
documents are not contained within the materials submitted to
this court, but, according to the husband's motion, the
wife sought to collect $70, 773.75. In his motion, the
husband asserted that the processes of garnishment did not
specify the funds to be garnished or identify how the amounts
sought were calculated and that, if the garnishments were
carried out, he would be "financially crippled."
The husband also asserted that he
"contests the valuation of his company in [Curtis
II], among other issues, and therefore, the resulting
alimony in gross that he is required to pay to [the wife],
posting a supersedeas bond for 125% of the money judgment as
specified [in Rule 8, Ala. R. App. P., ] would have been
inequitable in this case. As such, a formal stay of the
existing Final Judgment of Divorce is necessary and
20, 2017, the wife filed a response in opposition to the
husband's motion in which she asserted, among other
things, that the husband was not entitled to a stay absent
the execution of a supersedeas bond. On September 18, 2017,
after a hearing, the trial court granted the husband's
motion to quash the processes of garnishment and stayed any
further execution of the final judgment pending the outcome
of the appeals in Curtis II.
October 2, 2017, the wife filed her petition for the writ of
mandamus to this court within the presumptively reasonable
time. See Rule 21(a)(3), Ala. R. App. P., and Norman v.
Norman, 984 So.2d 427, 429 (Ala. Civ. App.
2007)("The presumptively reasonable time within which to
file a petition for a writ of mandamus is the time in which
an appeal may be taken.").
"'"Mandamus is a drastic and extraordinary
writ, to be issued only where there is (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 Perfection Siding, Inc.,
882 So.2d 307, 309-10 (Ala. 2003) (quoting Ex parte
Integon Corp., 672 So.2d 497, 499 (Ala. 1995))."
Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala. 2008).
Our supreme court has recognized that "a writ of
mandamus is an appropriate means by which to review ... [the]
grant of a motion to set aside previous supersedeas bond
amount ...." Ex parte U.S. Bank Nat'l
Ass'n, 148 So.3d 1060, 1064 (Ala. 2014) (citing
Ex parte Mohabbat, 93 So.3d 79 (Ala. 2012)).
mandamus petition, the wife argues that, because the husband
did not post a supersedeas bond, this court should direct the
trial court to vacate its order granting the stay. The
husband responds that mandamus is not an appropriate remedy
insofar as the trial court's order quashes the processes
of garnishment. The wife, however, has not challenged in her
mandamus petition the portion of the trial court's order
quashing the processes of garnishment. Therefore, we will
determine only whether the wife is entitled to the relief
specifically requested in her ...