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Dean v. Dean

Court of Civil Appeals of Alabama

April 19, 2019

James E. DEAN,
Kristin D. DEAN.

         Certiorari Denied September 13, 2019.

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         Appeal from Shelby Circuit Court (DR-15-900342.01 and DR.15-900342.02)

         S. Phillip Bahakel and Donna J. Beaulieu of S. Phillip Bahakel & Associates, Pelhalm, for appellant.

          Joseph R. Kemp and Joel P. Watson of Hill, Gossett, Kemp & Hufford, P.C., Moody, for appellee.

         HANSON, Judge.

         James E. Dean ("the former husband") filed in our supreme court a petition for a writ of mandamus directed to the Shelby Circuit Court seeking review of orders entered by that court in two cases on January 31, 2019, finding the former husband in contempt and modifying various aspects of a judgment entered in a divorce action to which the former husband and Kristin D. Dean ("the former wife") had been parties; that petition was transferred to this court for disposition. Treating the mandamus petition as a timely appeal from a final judgment, we affirm the January 31, 2019, judgment of the circuit court.

         The attachments to the former husband's mandamus petition and the former wife's response indicate the following pertinent facts. The parties were divorced by a judgment of the circuit court entered in October 2015 based upon the parties' agreement. The former husband filed a petition in February 2016 seeking modification and enforcement of various provisions of that judgment (case no. DR-15-900342.01); the former wife answered that petition in July 2016 and also asserted a

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counterclaim seeking modification and enforcement of the October 2015 judgment (case no. DR-15-900342.02). In May 2018, the circuit-court judge that had previously been assigned the parties' modification and enforcement claims reassigned the cases to a retired circuit judge ("the retired circuit judge") for disposition; the retired circuit judge had first been assigned by the Chief Justice of the Alabama Supreme Court in January 2017 to serve as a special circuit judge for the circuit that encompasses Shelby County, and a second order from the chief justice had reauthorized the retired circuit judge on August 1, 2017, to continue serving in that capacity through August 1, 2018. Although the retired circuit judge set the parties' claims for a trial to be held on August 13, 2018, several days after the second assignment order was to expire, no further reassignment order directed to the retired circuit judge was initially issued by the chief justice at the expiration of that subsequent order.

         Notwithstanding the expiration of the orders assigning the retired circuit judge as a special circuit judge in the circuit encompassing Shelby County, the retired circuit judge continued to act in a judicial capacity as to the parties' claims without objection from either of the parties. Because the parties' cases were not tried as originally scheduled, the retired circuit judge entered an order on December 11, 2018, setting the cases for a trial to be held on January 14-15, 2019. On the first scheduled trial date, counsel for the former wife filed a "Notice of Filing Partial Settlement" to which was attached an agreement entered into by the parties addressing matters such as visitation with their minor child and access to that child's medical and educational records.

         An ore tenus proceeding then took place on January 14 and January 15, 2019, before the retired circuit judge as to the parties' remaining pending claims, which apparently included a request on the part of the former husband to reduce his prospective child-support obligation, a claim asserted by the former wife seeking to have the former husband held in contempt as to alleged nonpayment of child-support and medical-expense-reimbursement obligations, and fee claims asserted against the former husband by guardians ad litem for the parties' minor child. The retired circuit judge orally indicated at the close of the trial that he intended to rule in favor of the former wife and the guardians ad litem on their contempt claims and that the punishment for those contempts would involve incarceration. On January 24, 2019, before any judgment or order had been entered pursuant to Rule 58, Ala. R. Civ. P., the former husband filed a motion requesting that the circuit court revisit its findings and conclusions as orally stated and allow further evidence to be presented; that motion presented only substantive challenges to the propriety of sanctions against him and did not challenge the authority of the retired circuit judge to act in a judicial capacity.

         On January 31, 2019, a document entitled "Order on Criminal Contempt and Final Order of Modification" was executed by the retired circuit judge and entered as the judgment of the circuit court. In that judgment, the retired circuit judge ruled that, although the parties' agreement as to visitation and record-access issues should be ratified and the former husband's prospective child-support obligation should be reduced to $381 per month, the former wife was entitled to money judgments of $5,958.96 and $5,574.41 representing, respectively, the arrearages in child-support and medical-reimbursement payments due from the former husband; the former husband was also sentenced to be incarcerated for 10 days with respect to 2 instances in which the former husband had not paid

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child support as directed and for 250 days with respect to 50 instances in which he had not timely reimbursed the former wife for the child's medical expenses. The former husband was also directed to report on February 26, 2019, for the circuit court to "determine when [the former husband] shall begin serving his period of incarceration." By a separate order, the former husband was directed to pay $3,000 to the ...

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