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Ex parte Lester

Alabama Court of Civil Appeals

December 13, 2019

Ex parte John Lester
v.
John Lester In re: Amber Lester

          Lee Circuit Court, DR-10-39.07

          PETITION FOR WRIT OF MANDAMUS

          EDWARDS, JUDGE.

         John Lester ("the father") has filed in this court a petition for the writ of mandamus seeking an order directing the Lee Circuit Court ("the trial court") to set aside two orders that restrict the father's contact with Amber Lester ("the mother"); the mother's husband, Brian Manderson; and the parties' children. The court called for expedited answers, but none were filed. The following facts and procedural history are taken from the materials submitted in support of the petition, which, because no answer controverting those facts was filed, we take as true. See Ex parte Allison, 238 So.3d 1260, 1262 (Ala. Civ. App. 2017).

         The mother and the father were previously divorced by the trial court.[1] In May 2019, the mother filed a complaint in which she requested that the trial court hold the father in contempt of a provision contained in a judgment entered by the trial court in June 2018 that prohibited contact between the father and Manderson. The provision required that, when attending events in which the parties' children participated, like ball games or church events, the father and Manderson were to remain at least 100 feet from each other. The mother alleged in her complaint that the father had violated that provision by following Manderson to a store parking lot and later attacking him while he sat in his vehicle during one of the children's softball practices. The mother attached Manderson's affidavit and her own affidavit to her complaint. In her affidavit, she admitted that she had not been present at the time of the alleged incident but had, instead, been on the telephone with Manderson during part of the incident. Manderson stated in his affidavit that the father had followed him in his vehicle and had punched him in the face several times while screaming profanities.

         Contemporaneously with her complaint, the mother filed a "motion for ex parte temporary emergency order," in which she alleged generally that the father's behavior was "putting everyone's very livelihoods [sic] in danger" and that the father's unstable conduct was causing harm to the children. The mother requested that the trial court order that the father not be permitted to attend the children's activities if she and Manderson were going to be present. She also requested that the father be ordered to undergo mental-health treatment and that, pending completion of such treatment, the father's visitation with the children be supervised.

         On the same day that the mother's complaint and motion were filed, the trial court entered an order suspending the father's visitation and ordering that the father have no contact with Manderson or the children ("the ex parte visitation order"). In the ex parte visitation order, the trial court specifically stated that it intended to also enter a protection-from-abuse ("PFA") order under the Alabama Protection from Abuse Act ("the Act"), Ala. Code 1975, § 30-5-1 et seq. The trial court entered a PFA order on May 13, 2019. In the PFA order, the trial court found that the father represented a credible threat to the mother and Manderson; restrained the father from having any contact with the mother, the children, or Manderson; ordered that the father stay away from the facility at which the alleged incident occurred; and required the father to stay 300 feet from the mother's residence, the mother's place of employment, and the children's school. Finally, the PFA order awarded temporary sole legal and physical custody of the children to the mother.

         On October 16, 2019, the father filed in the trial court a motion to set aside the PFA order; he later amended that motion to seek to have the ex parte visitation order set aside. In his initial motion, the father averred that he had been served with the PFA order on October 7, 2019.[2] In his motions, the father argued to the trial court that (1) the mother had not filed a complaint seeking a PFA order, (2) that the mother had not alleged an act of abuse against her, (3) that the motion for an ex parte temporary emergency order did not allege facts indicating that immediate and irreparable injury would result if the order were not entered, and (4) that the motion for an ex parte temporary emergency order was not supported by the attorney's Rule 65(b), Ala. R. Civ. P., certificate.

         The trial court held a hearing on the father's motion and amended motion on October 31, 2019. After that hearing, the trial court entered, on November 1, 2019, an order declining to set aside the ex parte visitation order or the PFA order. The father filed a motion seeking reconsideration of the trial court's denial of his motion and amended motion to set aside those orders, but the trial court had not yet ruled on that motion when the father filed his petition for the writ of mandamus with this court on November 13, 2019.

         The father is seeking relief from May 2019 orders of the trial court. His petition, which was filed in November 2019, is therefore untimely. See Rule 21(a)(3), Ala. R. App. P. He did not, as did the petitioner in Ex parte Franks, 7 So.3d 391 (Ala. Civ. App. 2008), include with his petition a statement of good cause for his failure to file the petition within the presumptively reasonable time.[3] However, the father is challenging the trial court's orders on jurisdictional grounds, and this court may still consider the merits of a petition for the writ of mandamus "that challenges the jurisdiction of the trial court to enter the order sought to be vacated [despite the fact that the petition was] not ... filed within the presumptively reasonable period prescribed by Rule 21[(a)(3)]." Ex parte Madison Cty. Dep't of Human Res., 261 So.3d 381, 385 (Ala. Civ. App. 2017) (citing Ex parte K.R., 210 So.3d 1106, 1112 (Ala. 2016)). We have explained that the principle allowing us to consider untimely petitions for the writ of mandamus "applies in cases in which a party argues that an order is void for want of due process." Ex parte Murray, 267 So.3d 328, 332 (Ala. Civ. App. 2018); see also Ex parte M.F.B., 228 So.3d 460, 462 (Ala. Civ. App. 2017) (explaining that "contentions regarding lack of notice and a hearing in connection with a court's ex parte limitation of [a parent's] visitation rights implicate due-process guarantees ... and do in fact go to the power of the juvenile court to enter [ex parte] orders [and] warrants consideration of the merits [of a petition for the writ of mandamus], notwithstanding the [petitioner's] noncompliance with Rule 21(a)(3), Ala. R. App. P.").

"'A writ of mandamus is an extraordinary remedy ... that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner.' Ex parte Edwards, 727 So.2d 792, 794 (Ala. 1998). The petitioner must demonstrate:
"'"(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."'
"Ex parte Edwards, 727 So.2d at 794 (quoting Ex parte Adams, 514 So.2d 845, 850 (Ala. 1987))."

Ex parte D.J.B., 859 So.2d 445, 448 (Ala. Civ. App. 2003).

         The father argues that the ex parte visitation order should be vacated because the mother's motion for an ex parte temporary emergency order was not supported by the certification ...


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