Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ex parte Paulk

Alabama Court of Civil Appeals

February 23, 2018

Ex parte Melanie B. Paulk
v.
Robert A. Paulk In re: Melanie B. Paulk

         Mobile Circuit Court, DR-02-500958.07

          PETITION FOR WRIT OF MANDAMUS

          MOORE, Judge.

         Melanie 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." Id.

         On 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__ .

         On 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 [father]."

         The mother filed her mandamus petition with this court on January 5, 2018.

         In her 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.