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Ex parte Dumas

Alabama Court of Civil Appeals

February 2, 2018

Ex parte Paul W. Dumas
v.
Laura Walters Wood In re: Ruth Howell Walters

         Montgomery Circuit Court, DR-15-900805

          PETITION FOR WRIT OF MANDAMUS

          MOORE, JUDGE.

         Paul W. Dumas, the father of S.K.D. and K.W.D. ("the children"), petitions this court for a writ of mandamus directing the Montgomery Circuit Court ("the trial court") to vacate its order awarding custody of the children to their maternal grandmother, Ruth Howell Walters ("the maternal grandmother"). The father also requests this court to direct the trial court to transfer the action to the Lowndes Circuit Court. We dismiss the petition in part and deny it in part.

         Background and Procedural History

         The exhibits attached to the petition and the answer filed by the maternal grandmother reveal the following. On February 6, 2015, the father and Laura Walters Wood ("the mother") entered into a settlement agreement in a divorce action in the Lowndes Circuit Court. The mother and the father agreed that they would have joint legal custody of the children, that the mother would have "primary" physical custody of the children, [1] and that the father would exercise visitation.

         On September 22, 2015, the maternal grandmother filed a petition in the trial court, seeking grandparent visitation with the children. On November 13, 2015, the trial court dismissed the maternal grandmother's petition. On December 10, 2015, the maternal grandmother filed a motion to vacate the trial court's order of dismissal and sought to amend her petition to request custody of the children.[2]

         On August 22, 2016, the mother filed an answer to the maternal grandmother's petition and a motion to dismiss the petition. After the maternal grandmother filed a response to the mother's filing, the mother filed a subsequent response on September 12, 2016, requesting the dismissal of the action or to transfer the action to the Lowndes Circuit Court; she also attached an affidavit of the father in support of her response.

         After a hearing, at which only the maternal grandmother and her attorney were present, the trial court entered an order on September 25, 2017, awarding custody of the children to the maternal grandmother.

         On September 26, 2017, the mother filed a motion to set aside the order. On September 28, 2017, the father, who apparently had not been made a party to the action or served, filed an expedited motion to set aside the award of custody and to dismiss the case; he also requested that the action be transferred to the Lowndes Circuit Court and that he be awarded temporary custody of the children. He alleged that he had not been given notice of the action.

         On September 28, 2017, the father filed in the Lowndes Circuit Court a petition to modify the parties' divorce judgment, a motion for pendente lite custody of the children, and a motion for suspension of his child-support obligation pendente lite.

         On October 3, 2017, the father filed in the trial court, among other things, a motion for an emergency hearing and a motion for the immediate return of the children to him.

         On November 6, 2017, the trial court entered an order stating that a hearing on the mother's motion to set aside the September 25, 2017, order had been held on November 2, 2017, at which the father, the mother, the maternal grandmother, and their attorneys, among others, had been present.[3] The trial court ordered that it would retain jurisdiction of the action and that pendente lite custody of the children would remain with the maternal grandmother pending a final hearing.

         The father filed his mandamus petition with this court on November 10, 2017.

         Standard ...


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