Seibert v. Seibert (Ex parte Seibert), 2160006

• Decision Date: 06 January 2017
• Docket Number: 2160006
• Parties: EX PARTE Carl Michael SEIBERT (In re: Carl Michael Seibert v. Lorrie Ann Fields Seibert)
• Court: Alabama Court of Civil Appeals

231 So.3d 1111

EX PARTE Carl Michael SEIBERT

(In re: Carl Michael Seibert

v.Lorrie Ann Fields Seibert)

2160006

Court of Civil Appeals of Alabama.

January 06, 2017

* Note from the reporter of decisions: Judge Cole, circuit judge, 9th Judicial Circuit, was appointed to preside over this case upon the recusal of the circuit judges in Madison County.

Lowell H. Becraft, Jr., Huntsville, for petitioner.

Amber Yerkey James and David Ray Pace, New Beginnings Family Law, P.C., Huntsville, for respondent.

MOORE, Judge.

Carl Michael Seibert ("the former husband") petitions this court for a writ of mandamus directing the Madison Circuit Court ("the trial court") to set aside as void two orders entered in case number DR–13–900006, the divorce action between the former husband and Lorrie Ann Fields Seibert ("the former wife"). We deny the petition.

Background and Procedural History

On October 5, 2012, the circuit-court judges of the Twenty–Third Judicial Circuit, of which the trial court is a part, adopted a "standing pendente lite order" that is "to be considered entered in every original contested divorce action filed in [that] Judicial Circuit without further order." On January 2, 2013, the former wife filed in the trial court a complaint seeking a divorce from the former husband based on the ground of incompatibility of temperament.¹ The former wife served the former husband with the complaint and a copy of portions of the standing pendente lite order, including a provision prohibiting the former wife and the former husband from harassing each other.

On August 12, 2013, the former wife filed a motion seeking to hold the former husband in contempt for, among other things, violating the harassment provision in the standing pendente lite order. On August 20, 2013, the trial court entered an order adopting the standing pendente lite order and stating that it considered the standing pendente lite order "to have come into full force and effect with the filing of [the divorce] action." On September 4, 2013, the former husband answered the former wife's motion for contempt, stating, among other things, that the standing pendente lite order had not been in force until it was adopted by the trial court on August 20, 2013. Subsequently, the former wife filed three more motions requesting that the former husband be held in contempt for violating the standing pendente lite order; the former husband also filed a motion to hold the former wife in contempt for violating the standing pendente lite order. After a trial, the trial court entered a judgment divorcing the parties and denying all the motions for contempt. The former husband appealed, and this court affirmed the divorce judgment, without an opinion. Seibert v. Seibert, 217 So. 3d 843 (Ala. Civ. App. 2015) (table).

On December 6, 2013, the former husband was indicted on a charge of aggravated stalking in the second degree; an element of that crime is that the defendant's conduct must have "violate[d] [a] court order or injunction." Ala. Code 1975, § 13A–6–91.1. The former husband asserts that, through discovery, he was informed that he had been accused of stalking the former wife in violation of the standing pendente lite order. The former husband moved to dismiss the indictment on the basis that the standing pendente lite order was void; that motion was denied. The former husband did not seek mandamus review of the order denying the motion to dismiss, and the criminal action proceeded to trial. According to the former husband, the judge presiding over the criminal action declared a mistrial after the jury reported that it could not reach a unanimous verdict.

At some point, the former husband filed a modification action, designated as case number DR–13–900006.01. The trial court entered a final judgment in the modification action on August 17, 2016. The former husband filed a postjudgment motion in the modification action on August 22, 2016, seeking to vacate the standing pendente lite order. The trial court denied that motion on August 25, 2016. The former husband then filed, on September 19, 2016, a "motion to reconsider and vacate plainly void order"; the trial court entered an order denying that motion on September 20, 2016. The former husband filed his petition for a writ of mandamus with this court on October 4, 2016.

Discussion

In his petition for a writ of mandamus, the former husband seeks an order from this court compelling the trial court to vacate the standing pendente lite order entered in case number DR–13–900006 and the August 20, 2013, order adopting the standing pendente lite order entered in case number DR–13–900006. However, the former husband did not file a motion to vacate those orders in case number DR–13–900006. The record from that case shows that the trial court entered a final judgment in case number DR–13–900006 on July 10, 2014, which did not incorporate either of the interlocutory orders. By operation of law, those interlocutory orders were superseded by the final judgment and no longer have any legal effect. See F.M. v. B.S., 170 So.3d 663, 668 (Ala. Civ. App. 2014).

The former husband filed his motions to vacate the orders in case number DR–13–900006.01, the modification action. Assuming the former husband validly filed his motions in the modification action, which we do not decide, the former husband has failed to cite any legal authority by which the trial court could have vacated the standing pendente lite order and the August 20, 2013, order. Neither Rule 59, Ala. R. Civ. P., nor Rule 60(b), Ala. R. Civ. P., the only legal authorities upon which the former husband relies, permit a trial court to vacate interlocutory orders. Both Rule 59 and Rule 60(b) apply solely to final judgments. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549 (Ala. 2003) (explaining that a Rule 59 motion cannot be used as a vehicle to attack an interlocutory order); and EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So.2d 502, 508 (Ala. 2005) (pointing out that Rule 60(b) does not apply to interlocutory orders).

The former husband complains that, unless the trial court declares the orders void, he will be subject to continued criminal prosecution under Ala. Code 1975, § 13A–6–91.1. Nevertheless, the former husband has failed to show that the trial court had jurisdiction to vacate the orders and a mandatory duty to vacate the orders in case number DR–13–900006.01.

"A writ of mandamus is an extraordinary remedy available only when the petitioner demonstrates: ‘ "(1) a clear legal right 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) the properly invoked jurisdiction of the court." ’ Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001) )."

Ex parte T.J., 74 So.3d 447, 450 (Ala. Civ. App. 2011) (emphasis added). We conclude that, if § 13A–6–91.1 requires proof of the violation of a valid court order, which we do not decide, but see Morton v. State, 651 So.2d 42, 46–47 (Ala. Crim. App. 1994), the former husband cannot negate that essential element of the criminal prosecution through the instant petition for a writ of mandamus. However, our opinion does not preclude the former husband from seeking appellate review of any order or judgment entered in any subsequent criminal proceeding regarding the validity of the orders the former husband allegedly violated.

PETITION DENIED.

Pittman and Donaldson, JJ., concur.

Thompson, P.J., dissents, with writing, which Thomas, J., joins.

THOMPSON, Presiding Judge, dissenting.

On October 5, 2012, the judges of the Circuit Court of Madison County ("the trial court") each signed an "Order Regarding Issuance of Standing Pendente Lite Orders Upon Filing of Original Contested Divorce Action" ("the 2012 standing pendente lite order"), which contained, in relevant part, a provision stating that parties to a divorce action were not to harass each other. On January 3, 2013, Lorrie Ann Fields Seibert ("the wife") filed her divorce complaint seeking a divorce from Carl Michael Seibert ("the husband"). In the divorce action, both parties, among other things, sought to have the other held in contempt for violations of the 2012 standing pendente lite order, which was specifically adopted in the divorce action by the trial court in an August 20, 2013, order ("the 2013 pendente lite order"). The husband did not file a petition for a writ of mandamus challenging that order.

In the divorce action, the trial court did not expressly rule on the parties' competing contempt claims, but in its July 10, 2014, divorce judgment, the trial court denied all claims not specifically addressed in that judgment. Although the husband appealed that judgment, he did not assert any argument in that appeal pertaining to the 2013 pendente lite order. The husband did not assert on appeal of that judgment the issues he raises in this petition. See Seibert v. Seibert, 217 So. 3d 843 (Ala. Civ. App. 2015) (table).

Assuming, solely for the purpose of this writing, that the 2013 pendente lite order was not subsumed into the divorce judgment, this court may not review the 2013 pendente lite order by way of this untimely petition for a writ of mandamus. See Ex parte Pelham Tank Lines, Inc., 898 So.2d 733, 734 (Ala. 2004) (the presumptively reasonable time in which to file a petition for writ of mandamus is within 42 days of the entry of the order being challenged). Further, the husband has not filed any pleadings or motions in the divorce action, or an independent action, seeking to set aside any orders or judgments in the divorce action based on the arguments he currently asserts before this court. Accordingly, there is no order entered in the divorce action from which the husband could seek review in this court, and, therefore, this court would have no jurisdiction to address the husband's arguments in connection with...