Taylor v. Zeigler (Ex parte Taylor)
| Decision Date | 02 April 2021 |
| Docket Number | 2200379 |
| Citation | 335 So.3d 1159 |
| Parties | EX PARTE Brandon J. TAYLOR (In re: Brandon J. Taylor v. Carina C. Zeigler) |
| Court | Alabama Court of Civil Appeals |
Jacquelyn D. Tomlinson of Delk & Tomlinson, Montgomery, for petitioner.
Submitted on mandamus petition only.
Brandon J. Taylor ("the father") petitions this court for a writ of mandamus directing Montgomery Circuit Court Judge Anita L. Kelly to enter an order on the father's pending motion for pendente lite relief and to set the matter for a final hearing.
The father's petition reveals the following pertinent procedural history. On October 8, 2019, the father filed a petition to modify a judgment divorcing him from Carina C. Zeigler ("the mother"). The father asserted, among other things, that the divorce judgment incorporated an agreement between the father and the mother, pursuant to which the parties would share joint legal and physical custody of the parties' two children, and that the mother had since indicated to the father that she planned to move to California with the children. The father requested, among other relief, that the circuit court award him sole physical custody of the parties' two children and child support. On the same date that he filed his modification petition, the father filed a request for immediate pendente lite relief, seeking temporary physical custody of the parties' minor children.
On October 11, 2019, Judge Kelly entered an order setting the father's motion for pendente lite relief for an evidentiary hearing, which was conducted by Judge Kelly on October 17, 2019. On February 3, 2020, the father filed a motion requesting the entry of an order on his motion for pendente lite relief. After Judge Kelly did not respond to that motion, the father filed two more motions, one on August 5, 2020, and one on October 16, 2020, requesting that Judge Kelly rule on his request for pendente lite custody of the children. On November 17, 2020, the father filed a motion requesting that the case be set for a final hearing and noting that an order on his request for pendente lite custody had still not been entered at that time. After again receiving no response from Judge Kelly, the father finally filed a motion on January 26, 2021, requesting, for the fifth time, the entry of an order on his motion for pendente lite relief.
The father filed his mandamus petition with this court on February 22, 2021, requesting that this court issue the writ of mandamus to Judge Kelly ordering her to rule on his motion for pendente lite custody of the children and his motion to set the case for final hearing. This court entered an order on February 23, 2021, directing Judge Kelly to file, on or before noon on Friday, February 26, 2021, an answer to the father's petition and directing her to "explain why she has failed to rule on the pendente lite matters pending before her and the request for a final hearing filed by [the father]." This court also directed the mother to file an answer to the petition if she desired.
On February 26, 2021, Judge Kelly's judicial assistant e-mailed to the clerk of this court, at 11:49 a.m., two orders that had been entered by Judge Kelly earlier that morning. The first order, which was entered by Judge Kelly at 9:02 a.m., was a pendente lite order that, among other things, awarded the father physical custody of the parties' children, awarded the mother certain specified visitation in addition to visitation "at any and all times upon which the [p]arties mutually agree," enjoined the mother from removing the children from Montgomery, and suspended the father's child-support obligation. The second order, which was entered by Judge Kelly at 9:03 a.m., was a scheduling order that, among other things, set the father's modification petition for a final hearing on April 9, 2021. Notably, in neither of Judge Kelly's February 26, 2021, orders did she comply with this court's directive to explain why she had failed to rule on the pendente lite matters, which had been pending a ruling by Judge Kelly since October 17, 2019, when the hearing was held on the father's motion for pendente lite custody, or to set the father's modification petition for a final hearing, which request had been pending since November 17, 2020.
Following the receipt of Judge Kelly's February 26, 2021, orders, this court directed the father to notify this court whether his mandamus petition had been rendered moot in light of the entry of those orders. The father responded that he had not been made whole by the issuance of the February 26, 2021, orders, noting that he had waited 16 months for the entry of the pendente lite order, that he had been prejudiced by having to wait 16 months for the entry of the pendente lite order, and that he had incurred $1,138.26 in attorney's fees and court costs associated with the filing of his mandamus petition; he requested reimbursement for the attorney's fees and court costs he had incurred.
In his mandamus petition, the father requested that this court order Judge Kelly to enter an order on his motion for pendente lite custody of the children and to enter an order on his motion to set the case for a final hearing. In the February 26, 2021, orders, Judge Kelly granted the father's motions. Those orders effectively granted all the relief sought by the father in his mandamus petition. 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 McDaniel, 291 So. 3d 847, 851 n.2 (Ala. 2019). A petition for the writ of mandamus is moot when there is no real controversy and it seeks to determine an abstract question that does not rest on existing facts. State ex rel. Eagerton v. Corwin, 359 So. 2d 767, 769 (Ala. 1977). To the extent that the petition seeks relief requiring Judge Kelly to grant the father's motions, the petition for the writ of mandamus is moot because it no longer presents a justiciable controversy. See Ex parte St. John, 805 So. 2d 684, 686 (Ala. 2001).
The father maintains, however, that the entry of the February 26, 2021, orders does not eliminate the prejudice he suffered as a result of Judge Kelly's lengthy delay in entering those orders. The father does not elaborate on the "prejudice" he suffered, and he does not explain how this court can remedy that prejudice by a specific judicial determination granting his petition for the writ of mandamus. It appears that this court cannot grant the father any practical relief to remedy the prejudice to his rights caused by the delay in the ruling on his motions. See Alabama Dep't of Env't Mgmt. v. Association of Reg'l Councils, 968 So....
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