Geneva
Circuit Court, DR-19-900077
PETITION FOR WRIT OF MANDAMUS
THOMPSON, PRESIDING JUDGE.
Michele
Cherie Culverhouse ("the wife") has petitioned this
court for a writ of mandamus directing the Geneva Circuit
Court ("the trial court") to vacate a portion of
its August 6, 2019, order requiring that she equally share
the costs to mediate a divorce action filed by Corey Lee
Culverhouse ("the husband"). For the following
reasons, we grant the petition and issue the writ.
The
materials submitted to this court indicate that on August 6,
2019, the husband moved the trial court to set a final
hearing in the divorce action or, in the alternative,
"to set mediation." That same day, the trial court
granted that motion; the trial court ordered the husband and
the wife to mediate and specified that the husband and the
wife equally share the costs of the mediation.
On that
same date, the wife filed a motion asking the trial court to
amend its August 6, 2019, order to remove that portion of the
order that required her to share in the costs of the
mediation. In her motion, the wife argued that she had not
agreed to mediation and that, because he had moved for
mediation, the husband was required to pay the costs of the
mediation. In her August 6, 2019, motion, the wife cited
§ 6-6-20(b), Ala. Code 1975, and Mackey v.
Mackey, 799 So.2d 203 (Ala.Civ.App. 2001). The trial
court denied the wife's motion on August 7,
2019.[1] On August 8, 2019, the wife filed another
motion asking to be relieved from the requirement that she
share in paying the costs of the mediation. The trial court
entered an order on August 9, 2019, in which it denied that
motion. The wife filed a timely petition for a writ of
mandamus on August 16, 2019.
The
wife argues that the trial court erred in its interpretation
and application of § 6-6-20(b)(2), Ala. Code 1975.
Section 6-6-20 provides, in pertinent part:
"(a) For purposes of this section, 'mediation'
means a process in which a neutral third party assists the
parties to a civil action in reaching their own settlement
but does not have the authority to force the parties to
accept a binding decision.
"(b) Mediation is mandatory for all parties in the
following instances:
"(1) At any time where all parties agree.
"(2) Upon motion by any party. The party asking for
mediation shall pay the costs of mediation, except attorney
fees, unless otherwise agreed.
"(3) In the event no party requests mediation, the trial
court may, on its own motion, order mediation. The trial
court may allocate the costs of mediation, except attorney
fees, among the parties."
(Emphasis added.)
Thus,
if a party requests mediation, the trial court must grant
that request and order the parties to mediate their dispute.
§ 6-6-20(b). Our supreme court has explained:
"'Although a trial court has discretion as to
whether to stay the proceedings during the mediation, the
trial court has to order mediation upon request of a
party.' Ex parte Morgan County Comm'n, 6 So.
3d 1145, 1147 (Ala. 2008) (noting that the trial court had no
discretion to deny the motion of a party requesting mediation
(emphasis added)). '"Section 6–6–20,
Ala. Code 1975, allows one party to require a court to
order mediation of a dispute, irrespective of the
position of any other party to the dispute."' 6 So.
3d at 1147 (quoting Alabama Civil Court Mediation Rules,
Comment to Amendment to Rule 2, Effective June 26, ...