In re Fraiser

• Docket Number: CL-2023-0308
• Decision Date: 14 July 2023
• Citation: 387 So.3d 1135
• Parties: EX PARTE Gary Daniel FRAISER (In re: Angela N. Fraiser v.Gary Daniel Fraiser)
• Court: Alabama Court of Civil Appeals

387 So.3d 1135

EX PARTE Gary Daniel FRAISER

(In re: Angela N. Fraiser

v.Gary Daniel Fraiser)

CL-2023-0308

Court of Civil Appeals of Alabama.

July 14, 2023

Melissa Isaak of Isaak Law Firm, Montgomery, for petitioner.

Chip Cleveland of The Cleveland Firm, LLC, Prattville, for respondent.

THOMPSON, Presiding Judge.

On November 26, 2018, Angela N. Fraiser ("the wife") filed in the Elmore Circuit Court a petition seeking a divorce from Gary Daniel Fraiser ("the husband"). In her petition, the wife sought an award of custody of the two minor children born of the parties’ marriage, an award of child support, and an equitable division of the parties’ marital property. The husband filed an answer opposing the wife's claims and a counterclaim in which he also sought an award of custody of the parties' children.

The divorce action was assigned to Elmore Circuit Court Judge Sibley G. Reynolds, and Judge Reynolds presided over approximately 10 hearings concerning pendente lite issues raised by the parties. On January 16, 2023, Judge Reynolds retired from his position as an Elmore Circuit Court judge. On February 15, 2023, the Chief Justice of the Supreme Court of Alabama issued an order pursuant to Article VI, § 149, of the Alabama Constitution of 2022, assigning Judge Reynolds, in his capacity as an active retired judge, to the parties’ action. See Art. VI, § 149, Ala. Const. 2022 ("The chief justice of the supreme court shall be the administrative head of the judicial system. … The chief justice may assign … retired trial judges and retired appellate judges for temporary service in any court."). See also City of Bessemer v. McClain, 957 So. 2d 1061, 1091 n.3 (Ala. 2006) (opinion on second application for rehearing) ("Section 149 of Article VI is often referred to in cases as § 6.10, Amend. No. 328, Ala. Const. 1901, and as Amendment No. 328.").

On February 17, 2023, Judge Reynolds entered an order scheduling the parties’ divorce action for trial over the course of three days on May 16 through May 18, 2023. In that order, the trial court specified that "[i]t is noted that no court-supplied court reporter is to be present for this trial."

On March 20, 2023, the trial court entered an order granting a motion to withdraw filed by the husband's attorney. On May 2, 2023, a new attorney filed a notice of appearance on behalf of the husband and sought a continuance of the final hearing scheduled to begin on May 16, 2023. Also on May 2, 2023, the husband filed a motion styled "motion for [a] court reporter," in which he requested that the trial court provide a court reporter at all future hearings.

The trial court entered an order on May 2, 2023, in which it denied the husband’s motion to continue, stating that the husband "had known for weeks that this court date had been set." Also on May 2, 2023, the trial court "noted" the husband’s motion requesting that a court reporter be provided at future court hearings, stating "[t]he undersigned is not provided a court reporter. The parties can provide a record [sic] and, if qualified, the Court will allow them to participate and be sworn for the record." That May 2, 2023, order constituted a denial of the husband’s motion for the appointment of an official court reporter.

On May 8, 2023, the husband filed this petition for a writ of mandamus in which he argues that the trial court erred in denying his request for an official court reporter. The husband also moved for a stay of the proceedings in the trial court, and, on May 9, 2023, at 3:43 p.m., this court issued an order granting the motion for a stay. Later on May 9, 2023, at 5:22 p.m., the trial court entered a purported order stating "motion to allow the wife to obtain a certified court reporter … is hereby granted."

The wife has submitted to this court a purported order of the trial court entered on May 22, 2023. In that purported May 22, 2023, order, the trial court stated that it had engaged a certified court reporter for the three-day trial, which, it further stated, had been rescheduled for September 6 through September 8, 2023. In her filings in this court, the wife has argued that the trial court’s purported May 9, 2023, order and its purported May 22, 2023, order each render the husband’s petition for a writ of mandamus moot.

[1–3] "The filing of a petition for the writ of mandamus does not divest the trial court of jurisdiction or stay the case. State v. Webber, 892 So. 2d 869, 871 (Ala. 2004)." Ex parte King, 50 So. 3d 1056, 1058 n.2 (Ala. 2010). However, a matter submitted to this court for review by petition for a writ of mandamus can be rendered moot only if the courts do not stay the underly- ing action in the trial court, "The filing of a petition for the writ of mandamus does not divest the trial court of jurisdiction unless the action is stayed, and, if the trial court grants the relief that is sought in the mandamus petition, the petition may be mooted." Ex parte Taylor, 335 So. 3d 1159, 1161 (Ala. Civ. App. 2021) (emphasis added).¹

[4–6] In this case, this court issued its May 9, 2023, order staying the action before the trial court entered its purported May 9, 2023, order. The trial court lacked jurisdiction to enter any orders in this matter after this court issued its May 9, 2023, order staying the matter in the trial court. Therefore, the trial court lacked jurisdiction to enter its purported May 9, 2023, order and its purported May 22, 2023, order, and those orders are void. Watson v. Terminix Int’l Co., 810 So. 2d 689, 692 (Ala. 2001). See also Ex parte Anderson, 789 So. 2d 190, 192 n.1 (Ala. 2000) (noting that because our supreme court had entered an order staying proceedings, the trial court had been without jurisdiction to enter an order approving a settlement agreement between parties to the action not involved in the appeal that was then pending before the supreme court). Accordingly, because the purported May 9, 2023, order and the purported May 22, 2023, order are void, those orders cannot operate to render this petition for a writ of mandamus moot, and we reach the merits of the husband’s petition.²

"Mandamus is an extraordinary remedy. An appellate court will grant a petition for a writ of mandamus only when ‘(1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked.’ Ex parte Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000) (citing Ex parte Mercury Fin. Corp., 715 So. 2d 196, 198 (Ala. 1997)). Review by mandamus is not appropriate where the petitioner has another adequate remedy, such as an appeal. Ex parte Jackson, 780 So. 2d 681 (Ala. 2000); Ex parte Inverness Constr. Co., 775 So. 2d 153 (Ala. 2000); Ex parte Walters, 646 So. 2d 154 (Ala. Civ. App. 1994)."

Ex parte Amerigas, 855 So. 2d 544, 546-47 (Ala. Civ. App. 2003).

[7] The husband argues that he is entitled to a writ of mandamus directing the trial court to provide an official court reporter for the final hearing because only an official court reporter’s transcript may be considered to be evidence on appeal. In Ex parte French, 547 So. 2d 547 (Ala. 1989), our supreme court held that an unofficial transcript, i.e., a transcript prepared by a person not appointed pursuant to §§ 12-17-270 to -277, Ala. Code 1975, is not admissible evidence. The court explained:

"The appointment by the court of an official reporter, § 12-17-270, [Ala. Code 1975,] and the oath taken by the reporter, § 12-17-273, [Ala. Code 1975,] serve as protections to both parties, ensuringthe accuracy and impartiality of the reporting. On the other hand, a transcript by a reporter hired and paid by one party has no such guarantee of authenticity, and the opposing party is provided no protection from possible errors or even fraud."

Ex parte French, 547 So. 2d at 549.

Section 12-17-270, upon which the husband relies in his petition for a writ of mandamus, provides:

"Each of the judges of the circuit courts of this state shall appoint a competent person to perform the duties of official court reporter of the courts in the circuit over which said judge presides. No two or more judges shall appoint the same court reporter. The official court reporter shall be an officer of the court and within his circuit shall have power to administer oaths and shall hold office at the pleasure of the judge, who shall have power to remove said official reporter at any time…. The provisions of this section shall not apply to circuits which consist of only one county and have three or more than three judges."

The husband points out that the trial court is within the 19th Judicial Circuit, which comprises Autauga, Elmore, and Chilton counties. Thus, because the trial court is not in a circuit that consists of only one county, the exception set forth in the last sentence of § 12-17-270 does not apply to this matter. See Ex parte Hudson, 558 So. 2d 394, 395 (Ala. Civ. App. 1990) (holding that a trial court within a circuit that was comprised of one county lacked authority under § 12-17-270 to appoint an official court reporter).

A specially appointed retired circuit-court judge has the same duties and responsibilities as an elected or appointed circuit-court judge. § 12-18-7(b), Ala. Code 1975; Johnson v. Board of Control of the Employees’ Ret. Sys. of Alabama, 740 So. 2d 999, 1010 (Ala. 1999) ("‘Such retired justice or judge, when serving on a court in the absence or disqualification of the regular justice or judge, as the case may be, shall have and exercise all the duties and functions of the regular justice or judge for whom he is substituting.’ ") (quoting § 12-18-7(b), Ala. Code 1975). The materials before this court do not explain why the trial court denied the motion for the engagement of an official court reporter.

With regard to the interpretation of a statute such as § 12-17-270, our supreme court has...