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Ex parte Culverhous

Alabama Court of Civil Appeals

September 20, 2019

Ex parte Michele Cherie Culverhouse
v.
Michele Cherie Culverhouse In re: Corey Lee Culverhouse

          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, ...

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