Ex parte Pike
| Decision Date | 20 January 2023 |
| Docket Number | CL-2022-1157 |
| Parties | Ex parte Joshua P. Pike v. Joshua P. Pike In re: Kayla Laine Pike |
| Court | Alabama Court of Civil Appeals |
Shelby Circuit Court, DR-22-900538
PETITION FOR A WRIT OF MANDAMUS
Joshua P. Pike ("the husband") petitions this court for a writ of mandamus directing the Shelby Circuit Court ("the trial court") to vacate its order denying the husband's motion to dismiss the complaint for a divorce filed by Kayla Laine Pike ("the wife") against the husband and to enter an order dismissing that complaint. We deny the petition.
On September 5, 2022, the husband filed in the trial court a complaint seeking a legal separation from the wife; that complaint was assigned to Judge Patrick Kennedy and was assigned case number DR-22-900530 ("the separation action"). On September 9, 2022, before the wife was served with the husband's complaint in the separation action, the wife filed in the trial court a complaint for a divorce from the husband; that complaint was assigned to Judge Jonathan A. Spann and was assigned case number DR-22-900538 ("the divorce action"). On September 13, 2022, the husband filed in the divorce action a motion to dismiss the wife's complaint filed in the divorce action because, he argued, her claim for a divorce was a compulsory counterclaim that should have been asserted in the separation action. The wife filed a response to the husband's motion, requesting that the separation action and the divorce action be consolidated and that the divorce complaint be treated as a counterclaim to the complaint for a legal separation. On October 26, 2022, Judge Spann entered an order in the divorce action denying the husband's motion to dismiss and directing the husband to file an answer to the wife's complaint for a divorce within 14 days.
On November 7, 2022, the husband filed in the divorce action a motion to alter, amend, or vacate the October 26, 2022 order.[1] He filed in the divorce action, on November 8, 2022, a motion requesting to extend the time for filing an answer to the complaint for a divorce, which motion, he argued, was in the nature of a request for a stay because, he alleged, there remained a legitimate dispute about the dismissal of the divorce action. Judge Spann entered an order denying the husband's request for an extension of time on November 9, 2022. On that same date, Judge Spann entered an order denying the husband's motion to alter, amend, or vacate the October 26, 2022, order. Judge Spann noted in that order that the separation action had been dismissed on November 7, 2022. The husband acknowledges in his mandamus petition before this court that the separation action was dismissed by Judge Kennedy sua sponte; he asserts, however, that he filed in the separation action a motion to vacate that dismissal and that that motion remains pending. The husband filed his mandamus petition in this court on November 10, 2022.
A petition for a writ of mandamus is the appropriate vehicle to review an order denying a motion to dismiss based on the compulsory-counterclaim rule. See Ex parte Hayslip, 297 So.3d 381, 387 (Ala. 2019).
"' '"
Ex parte Brown, 963 So.2d 604, 606-07 (Ala. 2007) (quoting Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006), quoting in turn Ex parte Antonucci, 917 So.2d 825, 830 (Ala. 2005)).
The husband argues that the trial court erred in denying his motion to dismiss because, he says, the wife was required to file her complaint for a divorce as a compulsory counterclaim in the separation action pursuant to Rule 13(a), Ala. R. Civ P. Rule 13(a) provides, in pertinent part:
"A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction."
In his November 9, 2022, order, Judge Spann relied on § 30-2-40(c), Ala. Code 1975, and this court's opinion in Faellaci v. Faellaci, 98 So.3d 521 (Ala. Civ. App. 2012), in denying the husband's motion to dismiss the divorce action. Section 30-2-40(c) provides, in pertinent part, that "[a] proceeding or judgment for legal separation shall not bar either party from later instituting an action for dissolution of the marriage." In Faellaci, a judgment of legal separation was entered on May 8, 2006, incorporating a separation agreement that had been signed by the parties in that case. On February 28, 2008, one of the parties filed a petition to set aside the separation agreement and a complaint for a divorce. In concluding that the entry of an initial divorce judgment following the entry of the legal-separation judgment was not a modification of the legal-separation judgment and that a divorce action is a separate action, this court stated, in pertinent part:
98 So.3d at 534 (footnote omitted).
The husband argues in his petition before this court that Faellaci is distinguishable from the present case because, he says, a legal-separation judgment had already been entered in Faellaci and the case had been closed whereas, in the present case, the legal-separation complaint had not yet been adjudicated at the time the wife initiated the divorce action. The husband's attempted distinction fails, however, in light of the language in § 30-2-40 itself, which provides that a party is not barred from instituting an action for dissolution of the marriage by either a "proceeding or judgment for legal separation." (Emphasis added.)
Surtees v. VFJ Ventures, Inc., 8 So.3d 950, 970 (Ala. Civ. App. 2008) (quoting Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala. 2000)).
The use of the word "or" in § 30-2-40(c) indicates that a party is not...
To continue reading
Request your trial