Circuit Court, DR-14-901496.01
PETITION FOR WRIT OF MANDAMUS
THOMPSON, Presiding Judge.
January 2015, Tyler Casey Thompson ("the father")
and Kaleigh Rose Thompson ("the mother") were
divorced by the Baldwin Circuit Court ("the trial
court"). In the divorce judgment, the parties were
awarded joint legal custody of the parties' minor
children ("the children") and the father was
awarded sole physical custody. See §
30-3-151(2) and (5), Ala. Code 1975. In June 2017, the
father, as the custodial parent, provided notice to the
mother of his intent to move to New York with the children.
The mother has filed an objection in the trial court, and she
also seeks to modify custody. The father petitions this court
for a writ of mandamus directing the trial court to dismiss
the proceeding in which the mother objects to the proposed
move, asserting that the trial court does not have
following time line, gathered from the materials that the
parties have submitted in support of and in opposition to the
petition for a writ of mandamus, is helpful to a resolution
of this matter.
20, 2017, the father, in compliance with the requirements of
the Alabama Parent-Child Relationship Protection Act
("the Act"), § 30-3-160 et seq., Ala. Code
1975, notified the mother of his intent to move with the
children to Salem, New York, on September 1, 2017.
26, 2017, the mother sent by certified mail a letter
objecting to the proposed move. She did not file her
objection in the trial court at that time. That same day,
however, the mother, appearing pro se, filed a petition in
the trial court seeking to modify custody. Along with her
petition, the mother filed an affidavit of substantial
hardship ("the hardship affidavit").
26, 2017, the trial court granted the hardship affidavit. In
its order, the trial court stated: "The prepayment of
docket fees is hereby waived initially and will be taxed to
the [mother] as costs at the conclusion of the case."
12, 2017, the mother, who was by then represented by counsel,
filed with the trial court the letter she had mailed to the
husband on June 26, 2017, objecting to the move. She also
filed an amended objection to the move, petition to modify
custody and support, and petition for a rule nisi based on
the husband's alleged failure to maintain health
insurance for the children and to pay his share of the
children's health-care expenses.
hearing was held on August 31, 2017, during which the father
made an oral motion to dismiss the mother's objection to
the move on the ground that she had failed to pay a filing
fee. At that hearing, the trial court noted that the mother
had retained counsel and, from the bench, directed her to pay
"whatever filing fees you need to pay to get your case
going, go pay them before the next court date." The
materials before this court do not include a written order
memorializing the trial court's oral direction.
mother paid a filing fee of $350 on September 19, 2017. On
October 10, 2017, the trial court held a second hearing on
the issue of filing fees. On October 11, 2017, the trial
court entered an order determining that the mother's June
26, 2017, filing was "solely" a petition to modify
custody and did not constitute a proper objection to the
father's proposed relocation. However, the trial court
found, the mother's July 12, 2017, filing included a
properly filed objection, and, therefore, it denied the
father's motion to dismiss the objection. The trial court
dismissed the father's counterclaim, which is not at
issue before this court. Finally, the trial court ordered the
mother to "immediately pay any and all filing fees as
she appeared with counsel after filling out" the
hardship affidavit. On October 11, 2017, the mother filed a
second filing fee for the contempt petition.
father timely filed his petition for a writ of mandamus on
October 25, 2017. In his petition, the father argues that the
trial court erred by allowing the mother to file her
objection in an existing case, that is, without initiating a
new civil proceeding designated with new case number, and/or,
he says, without paying a filing fee within 30 days of her
receipt of his notice of the proposed move. Because the
mother did not pay a filing fee within 30 days, the father
contends, the trial court never obtained jurisdiction over
her objection to the move.
"'[T]he question of subject-matter jurisdiction is
reviewable by a petition for a writ of mandamus.' Ex
parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000)
(citing Ex parte Johnson, 715 So.2d 783, 785 (Ala.
"'"'A writ of mandamus is an extraordinary
remedy that requires a showing of: (1) a clear legal right in
the petitioner to the order sought; (2) an imperative duty on
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 Punturo, 928 So.2d 1030, 1033 (Ala.
2002) (quoting Ex parte Bruner, 749 So.2d 437, 439
(Ala. 1999), quoting in turn Ex parte McNaughton,