Ex Parte Kelsey A. Dunbar
Kelsey A. Dunbar In re: Robert Wood
Circuit Court, DR-18-900280
PETITION FOR WRIT OF MANDAMUS
was born in 2011 of the relationship between Kelsey A. Dunbar
("the mother") and Robert Wood ("the
father"); the parties never married. The materials
before this court do not indicate that any order or judgment
has awarded either party custody of the child. The parties
agree that the child lived with the mother in Florida until
the summer of 2017, when the child visited the father in
Alabama. The child remained with the father in Alabama from
approximately June 2017 through late November 2018. In late
November 2018, the mother traveled from her home in Florida
to Alabama, picked up the child from school without notifying
the father, and did not return the child to the father.
on November 26, 2018, the father filed in the Elmore Circuit
Court ("the trial court") a petition seeking to
establish the paternity of the child, seeking an award of
custody of the child, and seeking an award of child support.
The father also sought an ex parte order awarding him custody
of the child pending the resolution of his custody action. On
November 27, 2018, the trial court entered an ex parte order
ordering the mother to "immediately return the child to
the father," and to return the child to Alabama if the
child had been removed from this state, and scheduling a
pendente lite custody hearing for December 12, 2018.
December 4, 2018, an attorney filed a general notice of
appearance on behalf of the mother. Also on December 4, 2018,
the mother filed a motion to vacate the ex parte custody
order. In that motion, the mother argued that a child-support
action concerning the child had been filed previously in
Florida. The mother also stated in a footnote in her motion
that she had not been served with process and was appearing
for the sole purpose of "challenging the ex parte
December 12, 2018, the mother's attorney filed an amended
notice of appearance in which he stated that his
representation of the mother was limited "at the present
time to challenging" the November 27, 2018, ex parte
December 13, 2018, the trial court entered an order finding
that the father's attorney had been present for a hearing
on that date and that an attorney had filed a notice of
appearance on behalf of the mother. The trial court determined
that, although the mother had not been personally served, the
mother's attorney had filed a general notice of
appearance in the trial court, and, therefore, that the
mother had waived service of process. The trial court denied
the mother's motion to vacate its November 27, 2018, ex
parte custody order and directed that the father was to
receive a pickup order for obtaining custody of the child.
mother has filed a petition for a writ of mandamus in this
court challenging the December 13, 2018, order. The mother,
in part, relies on Rule 65, Ala. R. Civ. P., and
characterizes that part of the December 13, 2018, order that
continued the award of pendente lite custody in the father as
an injunction. We agree. We construe that part of the
December 13, 2018, order as granting the father interlocutory
injunctive relief, i.e., a continuation of pendente lite
custody and an order allowing him to regain custody of the
appeal is the appropriate method for reviewing the grant or
denial of injunctive relief. Rule 4(a)(1), Ala. R. App. P.;
B.C. v. Cullman Cty. Dep't of Human Res., 169
So.3d 1059, 1060 (Ala. Civ. App. 2015). "Rule 4(a)(1)
requires appeals from an interlocutory order granting an
injunction to be filed within 14 days of the date of the
entry of the order or judgment being appealed."
Peterson v. Lucas, 69 So.3d 878, 879 (Ala. Civ. App.
of filing a notice of appeal, the mother filed her petition
for a writ of mandamus on December 26, 2018, within the 14
days allowed for taking an appeal from the December 13, 2018,
order. A petition for a writ of mandamus is not a proper
method for seeking review of the December 13, 2018, order.
Rule 4(a)(1); B.C. v. Cullman Cty. Dep't of Human
Res., supra. This court may construe the mother's
petition for a writ of mandamus as an appeal. B.C. v.
Cullman Cty. Dep't of Human Res., 169 So.3d at 1060.
However, given the posture of this case, we elect not to
convert the mother's petition to an appeal. According, we
conclude that the mother has failed to properly seek
appellate relief from that part of the December 13, 2018,
order pertaining to pendente lite custody of the child, and,
thus, we dismiss the petition as to that issue.
mother also argues that the trial court erred in determining
in its December 13, 2018, order that she had waived service
of process when her attorney filed his general notice of
appearance. We conclude that that portion of the trial
court's December 13, 2018, order is properly reviewable
by way of the mother's petition for a writ of mandamus.
Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala. 2008);
Green v. Estate of Nance, 971 So.2d 38, 41 (Ala.
Civ. App. 2007).
mother cites Kingvision Pay-Per-View, Ltd. v. Ayers,
886 So.2d 45 (Ala. 2003), in support of her argument that a
notice of appearance filed by her attorney is not a pleading
that would constitute a general appearance in an action.
See Rule 7(a), Ala. R. Civ. P. (defining pleadings).
In Kingvision, supra, our supreme court stated,
among other things, that "[a] general appearance is a
waiver of notice and if a party appears in person or by
attorney he submits himself to the jurisdiction of the
court." 886 So.2d at 53. Thus, a party may be deemed to
have waived the right to service of process by filing a
general notice of appearance or a pleading that constitutes a
caselaw holds that a notice of appearance filed by an
attorney on behalf of his or her client constitutes "a
waiver of service of process." Simmons v.
Simmons, 99 So.3d 316, 320 (Ala. Civ. App. 2011).
See also Ex parte McCrory & Williams,
Inc., 155 So.3d 1018, 1021 (Ala. Civ. App. 2014) (citing
Simmons v. Simmons, supra, with approval); and
C.M. v. Madison Cty. Dep't of Human Res., 133
So.3d 890 (Ala. Civ. App. 2013) (recognized as having been
superseded by statute on other grounds in J.B. v. Cullman
Cty. Dep't of Human Res., 225 So.3d 66, 72 n. 3
(Ala. Civ. App. 2016)) (same).
facts of C.M. v. Madison County Department of Human
Resources, supra, are similar to those of this case with
regard to the issue of service. In that case, with regard to
the issue, the mother's attorney filed a notice of
appearance on behalf of the mother in an action seeking to
terminate the mother's parental rights. One week later,
the mother's attorney amended his notice of appearance to
state that that notice of appearance was not a waiver of the
mother's right to dispute service of process. At the
hearing on the merits, the mother's attorney objected to
the service by publication of the mother; he argued that the
affidavit in support of the service by publication on the
mother was insufficient to establish that the mother had
avoided service of process. The juvenile court overruled that
objection. On appeal, this court held that the notice of
appearance filed by the mother's attorney constituted a
waiver of service of process by ...