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Dean v. Dean

Alabama Court of Civil Appeals

April 19, 2019

James E. Dean
v.
Kristin D. Dean

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

          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 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 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 child's former guardian ad litem and $2, 400 to the child's current guardian ad litem.[1]

         On February 7, 2019, within 30 days after the entry of the January 31, 2019, judgment (and after the former wife had acknowledged the receipt of $5, 800 from the former husband to be applied toward his arrearages), the former husband filed a motion to vacate the circuit court's judgment and the separate order directing him to pay fees to the child's guardians ad litem, asserting, in pertinent part, that the expiration of the chief justice's second assignment order on August 1, 2018, rendered void all orders or judgments rendered by the retired circuit judge after that date.[2] Additionally, the former husband filed a motion on February 24, 2019, asserting that the retired circuit judge should deem himself disqualified as not being impartial and should recuse himself. After a hearing, the retired circuit judge rendered an order on behalf of the circuit court that, as corrected on March 1, 2019, specified that the former husband's motions to vacate and for recusal would soon be ruled upon and additionally indicating that the former husband was now facing, at most, a 10-day period of incarceration. On March 10, 2019, the retired circuit judge on behalf of the circuit court entered an order denying the former husband's motion to vacate and denying the motion seeking his recusal.[3]

         In his mandamus petition, the former husband acknowledges that it is his burden to demonstrate that he does not have another adequate remedy in order to show his entitlement to the extraordinary writ of mandamus. However, the January 31, 2019, judgment of the circuit court addressed numerous matters in controversy between the parties as to modification and enforcement of the October 2015 divorce judgment; found the former husband in contempt for nonpayment of child-support and medical-reimbursement payments due; and additionally specified that, except as specifically modified by the January 31, 2019, judgment, the October 2015 divorce judgment would remain in effect. Further, the circuit court has ruled on all the matters asserted in the two motions filed by the former husband after the entry of the January 31, 2019, judgment. Finally, the former husband filed his mandamus petition within the time specified for taking an appeal (i.e., within 42 days of January 31, 2019). Accordingly, we conclude that the circuit court has entered a final judgment and that the former husband has an adequate remedy by appeal, and, thus, the facts of this case warrant the exercise of our discretion to treat the former husband's petition for a writ of mandamus as an appeal from a final judgment of the circuit court. See Ex parte Taylor, 252 So.3d 637, 642 (Ala. 2017).

         The former husband asserts that the retired circuit judge lacked explicit authority to act as a judge of the circuit court between August 1, 2018, and February 5, 2019, which dates represent the expiration of the chief justice's second assignment order and the inception of the third assignment order directed to the retired circuit judge; the former husband proceeds from that premise to advance the position that the acts of the retired circuit judge during that interim period, which we term "the assignment gap," are absolutely void and of no effect. For that position, the former husband cites two Alabama cases: Paulk v. Paulk, 249 So.3d 521 (Ala. Civ. App. 2017), and Trammell v. State, 785 So.2d 398 (Ala.Crim.App.2000). However, the Court of Criminal Appeals decided Trammell based expressly upon judicial-authority principles enunciated in a case that would subsequently be reversed by our supreme court (Gwin v. State, 808 So.2d 64 (Ala.Crim.App.2000) ("Gwin I"), rev'd, 808 So.2d 65 (Ala. 2001) ("Gwin II")); we thus perceive Trammell to be without precedential value for the propositions invoked by the former husband and confine our inquiry to Paulk.

         In Paulk, a previous domestic-relations judgment of a circuit court that had been entered by a particular circuit judge in July 2015 had been reversed in part, and the cause had been remanded for further proceedings; however, by the time the circuit court had regained jurisdiction in November 2017 to address the manner in which best to comply with the mandate of this court, the circuit judge who had originally heard the case had retired from active service as a judge, and a motion was filed seeking the reassignment of the case from the retired judge. Although an active sitting judge entered an order on remand, his order was vacated as having been the result of a clerical error, and a new order on remand was entered that had been signed by the retired judge; further, the retired judge subsequently denied a postjudgment motion filed by one of the parties. On appeal from the order on remand that had been rendered by the retired judge, this court, acting ex mero motu, "raised the jurisdictional issue of the effect of [the trial judge's] retirement on the validity of the ... order [on remand] entered by him and requested that the parties brief that issue." 249 So.3d at 522. After noting several pertinent Alabama statutes governing appointment of special judges, this court observed that the record on appeal in Paulk contained "no order indicating that [the retired judge] was appointed as a temporary judge in accordance with the law" and pointed out that neither party had "contended that there was a valid appointment." 249 So.3d at 522-23 (emphasis added). This court further noted that "neither party ha[d] cited this court to any legal basis upon which a retired judge may enter an order without a valid appointment." Id. at 523. As a result, this court dismissed the appeal as having been taken from a void order, albeit with the additional observation that that decision did not "prevent[] or requir[e] the appointment of" the retired judge as a special, temporary judge prospectively. Id.

         The facts and procedural posture of this case differ from those present in Paulk, however. First, although this court's opinion in Paulk disclosed the complete absence of any order whatsoever appointing the retired judge in that case as a temporary judge, there is no dispute in this case that the retired circuit judge was assigned by the chief justice as a special circuit judge to serve in the circuit encompassing Shelby County from January 2017 to August 1, 2018. See Ala. Const. 1901 (Off. Recomp.), Art. VI § 149 (providing that chief justice "may assign ... retired trial judges ... for temporary service in any court"). Thus, we perceive no lack of authority on the part of the retired circuit judge to act following his having been assigned the underlying case in May 2018 until the commencement of the "assignment gap."

         Second, unlike the situation in Paulk, in which neither party offered any legal basis upon which it could be concluded that a retired judge could enter an order outside the scope of a valid appointment, the retired circuit judge opined in the March 10, 2019, order denying the motions filed by the former husband after the entry of the January 31, 2019, judgment that he "was acting as a de facto judge" and that the orders he rendered during the "assignment gap" were valid; the former wife offers this court a similar argument in favor of the validity of the retired circuit judge's orders entered during the "assignment gap."

         Alabama law has long recognized the principle that actions taken by persons who have incorrectly claimed the right to act in the capacity of a public official of this state are, in certain instances, valid in spite of those persons' lack of legal authority to so act. The concept of a "de facto officer" was discussed at some length by our supreme court in Cary v. State, 76 Ala. 78 (1884), in which a question arose concerning the authority of a person named Frank Nabors, who signed an arrest warrant several months after the expiration of his appointment as a notary public. ...


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