Teresa Norlander (“the mother”) petitions this court to issue a writ of mandamus directing the Cullman Circuit Court to vacate its ex parte order awarding pen-dente lite custody of the parties’ 10-year-old son to Daniel Norlander (“the father”). For the reasons set forth below, we grant the petition and issue the writ.
Fads and Procedural Histonj
On October 26, 2011, the father filed a divorce complaint and a motion for immediate pendente lite relief, seeking custody of the child, possession and exclusive use of the marital residence, and a temporary restraining order prohibiting the mother from harassing, threatеning, or interfering with the father. In support of his motion for pendente lite custody, the father alleged the following: that the mother was mentally unstable and unable to provide a safe environment for the child; that the mother had directed “violent fits or rage” at the father and had threatened to take the child away from him; that the mother had created a “fantasy world” based on a delusiоn that the father and his family were conspiring to ruin her reputation; that the mother had disparaged the father and his family members in the presence of the child, once having referred to the рaternal grandmother as a “slut” in the presence of the child, resulting, the father said, in his having to explain to the child the meaning of the word “slut”; that the mother had not allowed the child to see his paternal grandparents since May 2009; that the mother had screamed at the father in the presence of the child and had called the father “evil,” a “narcissist,” and “a pathological liаr” — conduct that, the father alleged, was adversely and irreparably damaging the child; that the mother had refused to seek treatment to determine whether she had a mental illness; that the mother was homeschooling the child and was, therefore, in a position to influence the child by her delusional conduct and that, according to the father, the child was beginning to believe the mothеr’s delusions; and, finally, that the father was “fearful as to what [the mother would] do to [him] and [to the child] once she was served with the complaint and the motion for immediate relief.”
The trial court entered an ex parte order granting the father’s motion for pen-dente lite relief the same day it was filed. The mother was served with the divorce complaint two days later on October 28, 2011. On Novеmber 4, 2011, the mother filed a motion to set aside the ex parte order, filed her own motion for pendente lite custody and child support, and filed a motion requesting the issuance of mutual restraining orders prohibiting the parties from harassing, annoying, or demeaning each other. The mother attached to her motion to set aside the ex parte order that had been issued in favor оf the father on his request for pendente lite custody a certified copy of a similar motion that the father had filed, along with a divorce complaint, in May 2009. The grounds stated in the father’s 2011 motiоn for pendente lite custody are identical to the grounds stated in his 2009 motion for pendente lite custody. The mother also attached to her motion copies of letters allegedly sеnt by the father to her, to his parents, and to his clergyman after he had dismissed his 2009 divorce complaint. Those letters purportedly contain the father’s admission that he is a “pathological liar”; the father’s apology for the “false” assertions concerning
The father filed a response to the mother’s motion to set aside the ex parte order, asserting that the statements he had made in the correspondence attached to the mother’s motion had not been made under oath and had merely reflected his efforts in 2009 “to savе his marriage” and “to appease [the mother].” The father asserted that the allegations he had made in 2011 concerning the mother’s conduct were essentially the same as the allegations he had made in 2009 because, he said, the mother had simply “never changed her conduct.”
The trial court denied all the mother’s motions on November 16, 2011. The mother filed a timely petition for a writ of mandamus in this court on November 18, 2011.
Standard of Revieiv
“Mandamus is a drastic and extraordinary writ, to be issued only where there is (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 properly invoked jurisdiction of the court.” Ex parte Integon Corp.,
Discussion
In Ex parte Williams,
Taking as true all the father’s assertions concerning thе mother’s conduct and the alleged effect of that conduct on the child, the assertions are simply insufficient, either singly or in combination, to infer a danger to the child’s “actual health and physical well-being.” The father’s allegations amount to no more than a description of the mother’s verbal display of anger at the father, accompanied by shouting, insults, and disparagemеnt of the father’s family members. That such rancor would be displayed in the presence of the parties’ child is unfortunate, but, we daresay, it is hardly unheard-of between spouses who are on the threshold of a divorce.
The father’s motion for immediate pen-dente lite relief “vehemently denie[d] that any physical abuse had occurred during the parties’ marriage.” Cf. Ex parte Russell,
The father argues that the rule announced in Ex parte Williams — that “a parent having custody of a minor child cannot be deprived of that custody, even temporarily, without being given adequate notice ... and an opportunity to be heard” — does not apply in this case because, he says, the ex parte custody order in this original divorce proceeding did not have the effect, as the ex parte order in Ex parte Williams did, of modifying a previous judgment awarding custody to a parent. That argument — the acceptance of which would result in the absurd declaration that married parents do not have “custody” of their children and that neither member of a couple that is separated has custody of his or her childrеn until the order of a court makes it so — is belied by our decision in Ex parte Franks, supra, also an original divorce proceeding in which the first and only custody order at issue was the ex parte pendente lite ordеr in favor of the mother and in which this court repeated the well-established rule set out in Ex parte Williams:
“In the absence of allegations indicating that the ‘actual health and physical well-being of the minor child are in danger,’ the trial court was without authority to enter an order removing custody from the father without affording the father notice and an opportunity to be heard. Ex parte Williams,474 So.2d at 710 ; Thorne v. Thorne,344 So.2d at 171 .”
The father contends that the mother is not entitled to relief by way of the petition for the writ of mandamus because, he says, she has other remedies available to her, specifically, “the right to request a hearing on the issue of temporary custody” or “a trial on the merits.” The mother is seeking to have the trial court’s interlocutory order, which was entered without notice to her and without a hearing, set aside; her right to request a hearing on pendentе lite custody or permanent custody does not amount to a remedy for the unlawful issuance of the ex parte order. Mandamus is the proper vehicle to review an interlocutory order in a divorce action that results in the denial of due process. See Ex parte Franks,
We hold that the allegations in the father’s October 26, 2011, motion were insufficient to warrant the entry of the penden-te lite custody order of that same date without providing the mother with notice and the opportunity to be heard. We, therefore, grant the petition and direct the Cullman Circuit Court to vacate its October 26, 2011, order and to conduct a hearing on the mother’s November 4, 2011, motions.
PETITION GRANTED; WRIT ISSUED.