Ex parte Melanie B. Paulk
Robert A. Paulk In re: Melanie B. Paulk
Circuit Court, DR-02-500958.07
PETITION FOR WRIT OF MANDAMUS
B. Paulk ("the mother") petitions this court for a
writ of mandamus directing the Mobile Circuit Court
("the trial court") to comply with this court's
remand instructions issued in her action against Robert A.
Paulk ("the father"). See Paulk v. Paulk,
217 So.3d 899 (Ala. Civ. App. 2016) ("Paulk
I"). In Paulk I, 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 owed for
child support." 217 So.3d at 903. This court remanded
the cause with instructions that the trial court
"calculate the amounts the parties owe."
January 11, 2017, Retired Judge Donald Banks entered an order
on remand following this court's reversal. After the
mother filed a timely postjudgment motion and that motion was
denied, the mother filed a notice of appeal to this court.
See Paulk v. Paulk, [2160481, Sept. 29, 2017] So.3d
(Ala. Civ. App. 2017) ("Paulk II"). In
Paulk II, the mother raised the same issues
regarding the January 11, 2017, order that she raises in the
present mandamus petition regarding the order under review;
however, this court did not reach the merits of the arguments
in Paulk II. Instead, this court, "ex mero
motu, raised the jurisdictional issue of the effect of Judge
Banks's [intervening] retirement on the validity of the
January 11, 2017, order entered by him." After receiving
letter briefs on that issue, this court determined that,
because the order challenged was issued by a retired judge
who had lacked authority to enter an order in the case, that
order was void. __So. 3d at__. We therefore dismissed the
appeal with instructions to the trial court to set aside the
void order. __So. 3d at__ .
September 12, 2017, Mobile County Circuit Judge John R.
Lockett entered an order stating: "Donald Banks, retired
Circuit Judge, having been appointed this date pursuant to
Ala. Code [1975, §] 12-1-14.1 ..., is hereby assigned
this case to conduct any and all further proceedings."
On November 29, 2017, Judge Banks entered an order, similar
to the January 11, 2017, order, providing, in pertinent part:
"1. THAT all motions for contempt are hereby denied.
"2. THAT a judgment is awarded in favor of the [mother]
and against the [father] in the amount of $21, 820.00
representing monies the [father] should have paid pursuant to
prior Court orders but did not pay.
"3. THAT a judgment is awarded in favor of the [father]
and against the [mother] in the amount of $19, 000.00
representing monies the [mother] should have paid pursuant to
prior Court orders but did not and which were paid by the
mother filed her mandamus petition with this court on January
petition, the mother argues that the trial court's
November 29, 2017, order failed to comply with this
court's remand instructions in Paulk II.
"'"The writ of mandamus is a drastic and
extraordinary writ, to be 'issued only when 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 United Serv. Stations, Inc.,
628 So.2d 501, 503 (Ala. 1993); see also Ex parte
Ziglar, 669 So.2d 133, 134 (Ala. 1995)." Ex
parte Carter, [807 So.2d 534');">807 So.2d 534, ] 536 [(Ala. 2001)].'
"Ex parte McWilliams, 812 So.2d 318, 321 (Ala.
2001). A petition for a writ of mandamus is the proper method
by which to bring before an appellate court the question
whether the trial court, on remand, has complied with the
appellate court's mandate. Ex parte Edwards, 727
So.2d 792, 794 (Ala. 1998).
"... [A]fter a case is remanded, the trial court may
enter '"'[n]o judgment other than that directed
or permitted by the reviewing court.... The appellate
court's decision is final as to all matters before it,
becomes the law of the case, and must be executed according
to the mandate, without granting a new trial or taking
additional evidence.'"' Id. at 794
(quoting Ex parte Alabama Power Co., 431 So.2d 151