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Ex parte Curtis

Alabama Court of Civil Appeals

November 17, 2017

Ex parte Mia Simone Curtis
v.
Mia Simone Curtis In re: Barry G. Curtis

         Talladega Circuit Court, DR-11-202

          PETITION FOR WRIT OF MANDAMUS

          DONALDSON, Judge.

         Mia 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.

         The 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 I").

         Based 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.

         On 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').

         In May 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 equitable."

         On June 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.

         On 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)).

          In her 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 ...


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