108 So. 3d 1040
Ala. Civ. App.2012Background
- Father filed paternity petition and sought primary custody on July 20, 2011; mother answered and sought adjudication of paternity and full custody.
- April 5, 2012, trial court issued a temporary order under an agreement awarding father unsupervised visitation and child support; case set for trial.
- On May 10, 2012, father obtained an ex parte order for temporary custody and suspended child support; mother received supervised visitation.
- Mother moved to vacate the May 10 ex parte order on May 17, 2012, arguing due process and evidentiary defects; father opposed with affidavits supporting relief.
- June 1, 2012, trial court vacated the May 10 ex parte order, adjudicated the father as the child’s father, and awarded week-to-week visitation with the custody hearing set for June 19, 2012; mother filed for mandamus on June 14, 2012.
- Petition denied; mandamus relief not warranted; May 10 ex parte order already vacated and June 1 order supported by the record; pendente lite framework discussed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus should vacate the June 1 order. | Mother argues no evidentiary basis for pendente lite custody. | Father contends evidence before court supported pendente lite award. | Denied; evidence viewed as support for June 1 order. |
| Whether May 10 ex parte order was reviewable after vacatur. | Ex parte order nullified; petition should address June 1 order. | Ex parte order vacated; focus on June 1 order. | Review limited to June 1 order; May 10 ex parte order moot. |
| Whether the May 10 ex parte and June 1 orders violated due process by denying notice/hearing or evidence. | Due process denied due to lack of notice and evidentiary hearing. | Pending evidentiary record supported by affidavits; no due process violation. | No reversal; due process not violated given record before court. |
| Whether mandamus is appropriate relief here. | Petitioner seeks mandamus to reinstate April 5 order. | Trial court had discretion; pendente lite award proper. | Not warranted; no clear legal right or imperative duty shown. |
Key Cases Cited
- Ex parte Monsanto Co., 862 So.2d 595 (Ala. 2003) (mandamus relief requires clear legal right and due process)
- Ex parte Russell, 911 So.2d 719 (Ala.Civ.App.2005) (before pendente lite custody, evidence must support best interests)
- Ex parte Butts, 775 So.2d 173 (Ala.2000) (mandamus standards applied to proceedings)
- Ex parte United Sen. Stations, Inc., 628 So.2d 501 (Ala.1993) (procedural requirements for ex parte orders)
- Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222 (Ala.2009) (petition for writ review limits materials considered)
- Ex parte McLendon, 455 So.2d 863 (Ala.1984) (burden of proof in custody modifications in pendente lite context)
- Ex parte A.E.Q., 102 So.3d 388 (Ala.Civ.App.2012) (timeliness as jurisdictional factor in mandamus)
- Ex parte Inverness Constr. Co., 775 So.2d 153 (Ala.2000) (mandamus standards principles cited)
- Ex parte Pfizer, Inc., 746 So.2d 960 (Ala.1999) (mandamus jurisdiction and remedies)
- Ex parte Children’s Hosp. of Alabama, 931 So.2d 1 (Ala.2005) (reiterates mandamus standards for review in pediatric custody)