Circuit Court, DR-16-3
PETITION FOR WRIT OF MANDAMUS
Lamar ("the husband") has filed a petition for the
writ of mandamus with this court, seeking an order compelling
the Clarke Circuit Court ("the trial court") to
enter a judgment divorcing him from Alrica Bell Lamar
("the wife") and resolving the issue of the custody
of the parties' child. According to the statements in the
petition and the materials submitted in support of the
petition,  the husband first filed his complaint
seeking a divorce from the wife in the Montgomery Circuit
Court on December 21, 2015. In February 2016, the Montgomery
Circuit Court transferred the divorce action to the trial
January 2017, the trial court first set the case for a trial
to be held in June 2017. The wife and her attorney failed to
appear at the June 2017 trial, allegedly because of
transportation issues, and the wife moved the trial court to
reopen the action so that she could present testimony.
Although the husband objected to the wife's request, the
trial court granted her motion and reset the matter for a
date in July 2017 for additional testimony. However, the
trial court's order indicated that it intended to hear
evidence concerning only temporary custody, visitation, and
child- support issues at the July 2017 hearing. The husband
objected to the trial court's order, seeking to have the
trial court hold a final trial in the matter, but, after the
July 2017 hearing, the trial court issued an order on August
9, 2017, addressing only temporary custody, visitation, and
August 28, 2017, the husband moved for a final trial on the
divorce action. The trial court set a trial for November 9,
2017. The husband's petition indicates that the trial was
conducted and concluded on November 9, 2017. On January 25,
2018, the husband filed a motion seeking the entry of a final
divorce judgment. According to the statements in the
petition, the trial court has not yet issued a final judgment
divorcing the parties and resolving the related issues.
"'"The rules of law applicable to the case are
simple and well settled. The writ of mandamus will
lie from a superior to an inferior or subordinate court, in a
proper case, to compel it to hear and decide a
controversy of which it has jurisdiction; or, where the cause
has been heard, to compel such inferior court to render
judgment or enter a decree in the given case. But its
use is not warranted to direct what particular
judgment shall be rendered in a pending cause, nor is it
the proper function of such remedial writ to re-examine, or
correct errors in any judgment or decree so rendered.
'The rule applies to judicial as well as to ministerial
acts, but it does not apply at all to a judicial act to
correct an error, as where the act has been
erroneously performed. If the duty is unperformed,
and it be judicial in its character, the mandate will be to
the judge directing him to exercise his judicial discretion
or judgment, without any direction as to the manner
in which it shall be done; or if it be ministerial, the
mandamus will direct the specific act to be
performed.' Ex parte Newman,  U.S. 152, 14
Wall. 152, 169, 20 L.Ed. 877');">20 L.Ed. 877 [(1871)]; High on Extr. Rem.
§§ 150-152, 266; Ex parte Schmidt, 62 Ala.
252 [(1878)]; Ex parte Mahone, 30 Ala. 49');">30 Ala. 49 [(1857)].
The principle, of course, universally prevails, that in no
event will the writ ever be awarded where full and
adequate relief can be had by appeal, writ of error, or
Ex parte Jim Walter Res., Inc., 91 So.3d 50, 53
(Ala. 2012) (quoting State v. Cobb, 288 Ala. 675,
678, 264 So.2d 523, 526 (1972), quoting in turn State v.
Williams, 69 Ala. 311, 316 (1881)).
in the materials before us indicates that the trial court has
a reason for delaying the entry of the divorce judgment in
this case for nearly six months. Based on the petition and
the materials presented in support of the petition, we
conclude that the husband is entitled to the writ he seeks
directing the trial court to enter a divorce judgment
resolving the issues between the parties. See Ex parte
Ford Motor Credit Co., 607 So.2d 169, 170 (Ala. 1992)
(ordering a trial court to rule on a Rule 64, Ala. R. Civ.
P., motion); Ex parte Gamble, 709 So.2d 67, 70 (Ala.
Civ. App. 1998) (ordering a trial court to rule on a pending
Rule 60(b), Ala. R. Civ. P., motion). Accordingly, the
petition is granted.
GRANTED; WRIT ISSUED.
Thompson, P.J., and Pittman, Moore, and Donaldson, JJ.,
Although this court called for an
answer to the petition, no answer was received. Thus, we will
consider the averments of fact in the husband's petition
as true. Exparte Turner, 840 ...