Landry v. Landry (In re Landry.)

• Decision Date: 18 January 2013
• Docket Number: 2110739.
• Parties: Ex parte Boyd James LANDRY. (In re Angela O. Landry v. Boyd James Landry).
• Court: Alabama Court of Civil Appeals

117 So.3d 714

Ex parte Boyd James LANDRY.(In re Angela O. Landry

v.Boyd James Landry).

2110739.

Court of Civil Appeals of Alabama.

Jan. 18, 2013.

Boyd James Landry, pro se.

J. Robert Faulk, Prattville, for respondent.

PER CURIAM.

On October 6, 2011, Angela O. Landry (“the mother”) filed a complaint containing two counts. In the first count, the mother alleged that Boyd James Landry (“the father”)had been ordered by the Autauga Circuit Court (“the trial court”) to notify her, her attorney, and the trial court if and when he obtained employment and that the father had willfully and contumaciously violated that order. The mother further alleged that the father had accrued child-support arrearages since a previous hearing in November 2010. The mother requested that the father be cited for contempt of court, that he be incarcerated for his actions, and that he be ordered to pay her attorney's fees. In the second count, the mother alleged that the parties' oldest child, Br.L., had graduated from high school, was enrolled at the University of Alabama, and was nearing her 19th birthday. The mother sought postminority educational support from the father in accordance with Ex parte Bayliss, 550 So.2d 986 (Ala.1989). The mother also requested that the trial court recalculate the father's child-support obligation for the parties' younger children when Br.L. turned 19, modify the divorce judgment to require the mother to carry health insurance on the children with the father to reimburse her for expenses not covered by insurance, and order the father to pay all of his child-support arrearages. At the February 14, 2012, trial, the mother orally amended her complaint to add a contempt claim against the father for his alleged willful refusal to respond to discovery as ordered by the trial court on January 24, 2012.

During the course of the proceedings, the father asserted that the mother's complaint violated the automatic stay in effect in his pending bankruptcy proceeding. See11 U.S.C. § 362. The father apparently filed an adversary proceeding in the bankruptcy court, accusing the mother and her attorney of violating the automatic stay. On the date of the trial, the mother's attorney notified the trial court of that development and informed the trial court that he had agreed with the father's counsel not to pursue certain of the mother's claims pending the outcome of a motion to lift the stay in the father's pending bankruptcy proceeding and the adversary proceeding. The father, who was acting pro se, acknowledged in open court that some agreement had been reached between the parties limiting the scope of the issues that would be tried that date. The record indicates that, after a long colloquy, both parties agreed that the trial court would receive evidence regarding only whether the father had committed contempt by failing to provide notice of his reemployment and by failing to answer the mother's discovery requests before the trial. The parties further agreed that the trial court would hear evidence on the mother's claim for Bayliss support and her request for a modification of the father's child-support obligation for the younger children. The parties agreed that the arrearage issues would not be resolved at that hearing.

On March 2, 2012, the trial court entered a judgment, which it amended on March 15, 2012. In its judgment, as amended, the trial court awarded the mother Bayliss support for Br.L., modified the father's child-support obligation for the younger children, and modified the health-insurance provisions of the divorce judgment to require the mother to provide health insurance for all the children. The trial court also found the father in criminal contempt for failing to notify the trial court that he had obtained employment and for failing to respond to the mother's discovery requests as the trial court previously had ordered. However, the trial court reserved imposing punishment against the father on the contempt finding because of the father's pending bankruptcy proceeding. The trial court further reserved all issues regarding the mother's child-support-arrearage claim for further hearing because of the father's pending bankruptcy proceeding.

The father initially filed a notice of appeal in this case on April 24, 2012; referencing the appeal number assigned by this court, he then filed a petition for a writ of mandamus on May 4, 2012, asserting that the March 15, 2012, order was not final. Upon preliminary review, this court decided to treat the appellate proceeding initiated by the father as an appeal for the purposes of compiling a record. The mother subsequently filed a motion to dismiss the appeal. Although the mother entitled her motion as “requesting appeal to be dismissed as untimely filed,” in the body of her motion the mother argued that the judgment was nonfinal because the last paragraph of the judgment stated: “That this case is otherwise continued for further hearing upon the motion of either party.” This court denied the mother's motion to dismiss the appeal on June 19, 2012. After further procedural wrangling over the content of the record, this court ordered the parties to brief the issues, which briefing ended on November 26, 2012, and the case was submitted to this court for decision.

After reviewing the record that has been compiled, it is now apparent to this court that the trial court did not enter a final judgment on March 15, 2012, as both parties at one point or another believed. The March 15, 2012, judgment failed to completely adjudicate the contempt claims because it left open any punishment to be meted out against the father on the contempt finding. The judgment also failed to adjudicate the mother's child-support-arrearage claim or her contempt claim against the father based on the accumulation of that arrearage.

“ ‘It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.’ ” Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999) (quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981)).

“An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. See Stone v. Haley, 812 So.2d 1245 (Ala.Civ.App.2001). In such an instance, an appeal may be had ‘only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’ See Rule 54(b), Ala. R. Civ. P.”

Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002). Upon a determination that a judgment is not final, this court has discretion to treat an appeal as a petition for a writ of mandamus. See Campton v. Miller, 19 So.3d 245 (Ala.Civ.App.2009). Because the father raised the same issues in both his appeal and his petition for a writ of mandamus, we find that the mother would not be prejudiced if we treat the appeal as a petition for a writ of mandamus; therefore, we elect to do so.

Interlocutory orders may be reviewed by a petition for a writ of mandamus. Ex parte Alfa Mut. Gen. Ins. Co., 681 So.2d 1047, 1049 (Ala.1996). However, it is not “ ‘ “the proper function of [a petition for a writ of mandamus] to re-examine, or correct errors in any judgment or decree....” ’ ” Ex parte C & D Logging, 3 So.3d 930, 936 (Ala.Civ.App.2008) (quoting State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972), quoting in turn State v. Williams, 69 Ala. 311, 316 (1881)). A petition for a writ of mandamus “ ‘cannot be used as a substitute for an appeal.’ ” Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1045 (Ala.Civ.App.2002) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)). In his petition for a writ of mandamus, the father seeks review of the merits of several of the factual and legal determinations made by the trial court, as well as review of the procedure by which the trial court found him in contempt. If any errors have been committed by the trial court in those regards, those errors would be correctable on appeal and cannot be reviewed via a petition for a writ of mandamus.

The father also asserts that the trial court's March 15, 2012, judgment is void because it violates the automatic stay entered pursuant to 11 U.S.C. § 362 at the time the father filed his bankruptcy petition. See11 U.S.C. § 362 (recognizing that, upon the filing of a bankruptcy petition, all other judicial and administrative actions, with certain enumerated exceptions, against the debtor are automatically stayed); and Ex parte Williford, 902 So.2d 658, 662 (Ala.2004) (“ ‘[C]ontrolling authority in this circuit provides that actions taken in violation of the automatic stay are void.’ ” (quoting memorandum decision of bankruptcy court)). See also Caffey v. Russell (In re Caffey), 384 B.R. 297, 306 (Bankr.S.D.Ala.2008) (“In the Eleventh Circuit ‘[a]ctions taken in violation of the automatic stay are void and without effect.’ United States v. White, 466 F.3d 1241, 1244 (11th Cir.2006) (citing Borg–Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982) (citing numerous cases from other circuits)).”). The question of jurisdiction is reviewable by a petition for a writ of mandamus, Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000), and a void judgment will not support an appeal, see Colburn v. Colburn, 14 So.3d 176, 179 (Ala.Civ.App.2009) (quoting Vann v. Cook, 989 So.2d 556, 559(Ala.Civ.App.2008)) (“A void judgment will not support an appeal and ‘an appellate court must dismiss an attempted appeal from such a void judgment.’ ”). As a result, we consider the father's petition as to this issue.

We agree with the father that, as a general rule, upon a debtor's filing a bankruptcy petition, 11 U.S.C. § 362(a) operates to stay all actions or proceedings against the debtor that could impact the debtor's...