Ex parte Edwards

• Decision Date: 25 November 1998
• Citation: 727 So.2d 792
• Parties: Ex parte Sharon K. EDWARDS. (Re Sharon K. Edwards v. Ronald Walter Edwards).
• Court: Alabama Supreme Court

727 So.2d 792

Ex parte Sharon K. EDWARDS.

(Re Sharon K. Edwards v. Ronald Walter Edwards).

1971840.

Supreme Court of Alabama.

November 25, 1998.

J. Christopher Capps, Dothan, for petitioner.

Stanley P. Walker and J.E. Sawyer, Jr., Enterprise, for respondent.

LYONS, Justice.

Sharon K. Edwards, a party in a case pending in the Pike Circuit Court, petitions for a writ of mandamus directing the trial judge, Judge Robert W. Barr, to enter an order awarding custody of the parties' minor children to her and to vacate his orders of September 3, 1998, and September 10, 1998, setting pending issues for an evidentiary hearing and/or trial. For the reasons discussed below, we grant the petition in part and deny it in part.

When Sharon K. Edwards and Ronald Walter Edwards were divorced in February 1994, the mother was awarded custody of their two minor children. The father filed a petition to modify, in June 1997, requesting that custody of the children be awarded to him. The mother then filed an answer and a counterclaim, requesting a modification of the father's child-support obligation. On August 7, 1997, the trial court entered a judgment transferring custody of the children from the mother to the father. The mother appealed to the Court of Civil Appeals. On May 1, 1998, that court reversed the trial court's judgment and remanded the cause "for proceedings consistent with this opinion." Edwards v. Edwards, 720 So.2d 956 (Ala.Civ.App.1998).

The father petitioned this Court for certiorari review. On May 21, 1998, at the father's request, the trial court ordered "that this cause be and the same is stayed pending appellate review of the Court of Civil Appeals' decision dated May 1, 1998."¹ The mother then petitioned this Court for a writ of mandamus directing the trial court to set aside its order staying the proceedings and to comply with the directive of the Court of Civil Appeals. On August 26, 1998, this Court denied certiorari review of the Court of Civil Appeals' May 1, 1998, judgment, and on September 29, 1998, we dismissed the mother's petition for the writ of mandamus as moot.

In the meantime, on August 31, 1998, the mother had filed in the trial court a "Motion to Enter Order in Accordance with Opinion of [the] Alabama Court of Civil Appeals." In that motion, she requested the trial court to enter an order returning custody of the children to her and ordering that the parties' divorce judgment entered on February 10, 1994, continue to govern the proceedings involving her and her former husband. We note that the mother stated in her motion that "the father returned the minor children to the mother Sunday, August 30, 1998, so that the children could be immediately enrolled in the Tallahassee School System." On September 3, the trial court entered the following notation on the case action summary sheet:

"It appears that the Plaintiff, Ronald Edwards, has voluntarily returned the children to the Defendant pursuant to the ruling of the Court of Civil Appeals. It further appears that the trial court's judgment in the case was reversed and remanded for proceedings consistent with the opinion. Therefore an evidentiary hearing is set on Plaintiff's Motion to Modify Custody ... for the 1st day of December, 1998, at 9:00 A.M."

Also on September 3, 1998, the father filed a motion to have the case set for trial, and on September 10, 1998, the trial court scheduled the trial for December 1, 1998.

On October 1, 1998, the mother filed a motion with this court asking us to "reconsider" our denial of her petition for the writ of mandamus. We treated that filing as a motion to amend the petition for the writ of mandamus, and granted the motion. In her amended petition, the mother argues that the trial court's order setting this case for an evidentiary hearing and/or trial conflicts with the decision of the Court of Civil Appeals and with the subsequent orders entered by this Court. She also alleges that the trial court has not yet entered an order awarding custody of the children to her.

In his answer to the mother's petition, the father contends that the trial court complied with the Court of Civil Appeals' judgment when it set this case for "further proceedings consistent with" that court's opinion. The father states that issues regarding visitation and child support have yet to be resolved in this case. The father also states that "since further proceedings were ordered, [he moved] the Trial Court for trial so that he could present additional evidence (concerning facts occurring after the Trial Court's original judgment) in support of his Motion to Modify Custody."

In response, the mother argues that a hearing to determine child support is not necessary in this case because, she says, the trial court can determine the proper amount of support from income affidavits filed by the parties. She also argues that a hearing is not necessary to determine visitation, if the trial court grants her August 31, 1998, motion and orders that the parties' 1994 divorce judgment continue to apply. Finally, the mother argues that the doctrine of res judicata prevents the father from presenting new evidence regarding the issue of custody.

A petition for a writ of mandamus is the proper method for bringing before an appellate court the question whether a trial court, after remand, has complied with the mandate of this Court or of one of our intermediate appellate courts. Ex parte Brown, 562 So.2d 485 (Ala.1990). Furthermore, a petition for a writ of mandamus is the proper method for seeking to have a trial court vacate an order that it had no power to enter. Great Atlantic & Pacific Tea Co. v. Sealy, 374 So.2d 877 (Ala.1979). A writ of mandamus is an extraordinary remedy, however, that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner. Ex parte Rollins, 495 So.2d 636 (Ala.1986). The petitioner must demonstrate the following: "(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 Adams, 514 So.2d 845, 850 (Ala.1987).

We first address whether the trial court has complied with the mandate of the Court of Civil Appeals. "It is well settled that, after remand, the trial court should comply strictly with the mandate of the appellate court by entering and implementing the appropriate judgment." Auerbach v. Parker, 558 So.2d 900, 902 (Ala.1989). In Ex parte Alabama Power Co., 431 So.2d 151 (Ala. 1983), this Court stated:

"`It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered.... The appellate court's decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence....'"

431 So.2d at 155 (quoting 5 Am.Jur.2d, Appeal & Error § 991 (1962)).

Clearly, the mandate of the Court of Civil Appeals required that the trial court enter a judgment awarding custody of the minor children to the mother. Instead of entering the appropriate judgment, however, the trial court set the case for an evidentiary hearing and/or trial on...