Ex parte Kelley, 022621 ALCIV, 2190878
| Opinion Judge | FRIDY, JUDGE |
| Party Name | Ex parte Joy Ann Kelley v. Steven Hunter Kelley In re: Joy Ann Kelley |
| Judge Panel | Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur. |
| Case Date | February 26, 2021 |
| Court | Alabama Court of Civil Appeals |
Colbert Circuit Court, DR-14-136
PETITION FOR WRIT OF MANDAMUS
FRIDY, JUDGE
Joy Ann Kelley ("the wife") petitions this court for a writ of mandamus directing the Colbert Circuit Court ("the trial court") to vacate an order ("the July 2 order ") entered by the trial court on July 2, 2020, in a divorce action the wife had brought against Steven Hunter Kelley ("the husband"). Because we conclude that the trial court lacked subject-matter jurisdiction to enter the July 2 order, we grant the wife's petition and issue the writ.
Procedural History
In 2014, the wife commenced an action for a legal separation from the husband in the Lauderdale Circuit Court. She subsequently amended her complaint to seek a divorce. Thereafter, the Lauderdale Circuit Court entered an order directing that the parties refrain from transferring or disposing of assets for purposes other than their usual, normal, and ordinary living expenses. After the entry of that order, the action was transferred to the trial court on the ground that the trial court was the proper venue for the action.
Following a trial, the trial court entered an amended final judgment on February 4, 2020 ("the February 4 judgment"). Among other things, the February 4 judgment found both parties in contempt; found that the wife had willfully disposed of personal property belonging to the husband with a total value of $26, 586; found that the husband had willfully failed to pay the wife pendente lite alimony totaling $34, 125; awarded the wife $7, 539, which represented the difference between the $34, 125 in unpaid pendente lite alimony and the $26, 586 value of the husband's personal property disposed of by the wife; awarded the wife $18, 266, which represented one-half of the value of the husband's retirement account on the date the parties had separated; and awarded the wife $2, 400, which represented the value of her one-half interest in the parties' automobile. The February 4 judgment also ordered the wife to return to the husband within 10 days of the entry of that judgment certain personal property that had a total value of $55, 600.
On February 20, 2020, the wife filed a document notifying the trial court and the husband that she was unable to fully comply with the February 4 judgment because, she said, the personal property she had been ordered to return to the husband consisted of some items that were no longer in her possession, some items that had been destroyed in a flood, and some items that she was unaware existed.
On February 21, 2020, the husband filed a motion ("the February 21 motion") in which he asked the trial court to find the wife in contempt for her failure to comply with the February 4 judgment; to award him $55, 600 in lieu of the personal property the wife claimed she was unable to return to the husband; to deduct from that $55, 600 the aggregate total of the monetary amounts awarded the wife in the February 4 judgment, which was $28, 205; and, after deducting that $28, 205, to award the husband the net amount of $27, 395.
On July 2, 2020, the trial court entered the July 2 order. In that order, the trial court purported to deny the husband's contempt claim but purported to treat the February 21 motion as a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the February 4 judgment and, as so treated, purported to amend the February 4 judgment by setting aside all the monetary awards to both parties contained in that judgment and by awarding the husband $1, 000, which represented the amount of the penalty he would incur as a result of his being unable to discharge his obligation to transfer to a third party certain items of the personal property the February 4 judgment had ordered the wife to return to the husband.
On August 21, 2020, the wife filed her petition for a writ of mandamus. This court called for an answer; however, neither the trial court nor the husband filed an answer to the wife's petition.
Timeliness of the Mandamus Petition
Although the wife did not file her mandamus petition within the presumptively reasonable period of 42 days after the entry of the July 2 order, see Rule 21(a)(3), Ala. R. App...
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