Ex parte Gage Bruce Roberts PETITION FOR WRIT OF MANDAMUS (In re: Gage Bruce Roberts v. Taylor Rose Roberts) (Mobile Circuit Court: DR-22-901220.02)

• Court: Court of Civil Appeals of Alabama
• Decided: July 26, 2024
• Docket: CL-2024-0296
• Status: Published

Opinion

Rel: July 26, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM, 2024 _________________________

CL-2024-0295 and CL-2024-0296 _________________________

Ex parte Gage Bruce Roberts

PETITIONS FOR WRIT OF MANDAMUS

(In re: Gage Bruce Roberts

v.

Taylor Rose Roberts)

(Mobile Circuit Court: DR-22-901220.01 and DR-22-901220.02)

EDWARDS, Judge.

Gage Bruce Roberts ("the father") and Taylor Rose Roberts ("the

mother") were divorced by a judgment entered by the Mobile Circuit

Court ("the trial court") on March 23, 2023 ("the divorce judgment"). The CL-2024-0295 and CL-2024-0296

divorce judgment incorporated a December 2022 agreement entered

between the parties ("the December 2022 agreement"). Pursuant to the

December 2022 agreement, the parties were awarded joint legal custody

of their children, and the father was awarded sole physical custody.

Moreover, the December 2022 agreement stated that the father "shall

relocate to his home state of Wisconsin with the minor children upon the

issuance of a final judgment of divorce." The December 2022 agreement

also provided that the mother would not be required to pay child support

because of the travel costs expected to be associated with visitation once

the father relocated to Wisconsin.

In January 2023, despite the fact that the mother had signed the

December 2022 agreement, the parties executed a separate parenting

agreement ("the January 2023 agreement") between themselves. The

January 2023 agreement was notarized but had not been drafted by or

presented to the attorney who had been hired by the father to handle the

parties' uncontested divorce. In contrast to the December 2022

agreement, the January 2023 agreement stated that the parties would

share joint physical custody of the children and set out a custody schedule

2 CL-2024-0295 and CL-2024-0296

pursuant to which the parties exercised physical custody on an

alternating weekly basis. In addition, the January 2023 agreement

required the written consent of either parent to permit the other parent

to move the children's residence outside the state of Alabama.

In January 2024, the mother filed a petition to modify the custody

provisions of the divorce judgment ("the modification action"), which was

assigned case number DR-22-901220.01. In her petition, the mother

sought an award of sole physical custody of the children. She explained

that, although the divorce judgment had awarded the father sole physical

custody of the children and had authorized him to relocate to Wisconsin

after the divorce judgment was entered, the father had not relocated to

Wisconsin until August 2023. In addition, the mother averred that, with

the consent of the father, who resided in Theodore, the children had lived

"almost exclusively" with her in Loxley until the father had refused to

return the children to Alabama after their Christmas 2023 visit with him

in Wisconsin. The mother alleged that the father's conduct during 2023

failed to "comport with [the January 2023 agreement], which stated that

any relocation outside the state of Alabama required the written consent

3 CL-2024-0295 and CL-2024-0296

of both parties." She also asserted that "[t]he final document submitted

to this Court did not reflect the same language, and the plaintiff father

told the mother that the executed agreement incorporated into the

Judgment of Divorce was the suggestion of his attorney and that he did

not intend on following it." Contemporaneously with her initiation of the

modification action, the mother also filed a motion seeking emergency

temporary custody of the children. The trial court did not immediately

rule on that motion and instead held a hearing on the issue of pendente

lite custody of the children on February 5, 2024.

Meanwhile, the father filed a petition seeking to establish a child-

support obligation for the mother ("the child-support action"); the child-

support action was assigned case number DR-22-901220.02. In his

petition, the father averred that the mother's income had increased and

that she could afford to provide support for the children despite the costs

of travel for visitation. On its own motion, the trial court consolidated

4 CL-2024-0295 and CL-2024-0296

the child-support action and the modification action and ordered that all

pleadings were to be filed in the modification action. 1

After the February 5, 2024, hearing, the trial court entered an order

in the modification action on February 6, 2024 ("the pendente lite order"),

awarding pendente lite custody of the children to the mother.2 The trial

court also "reaffirm[ed] the divorce of the parties" but set aside the

divorce judgment insofar as it incorporated the December 2022

1Notably, the consolidation order did not merge the modification

action and the child-support action into one single action. See Ex parte Glassmeyer, 204 So. 3d 906, 908 (Ala. Civ. App. 2016) ("Although consolidation 'does not merge the suits into a single cause,' Evers v. Link Enters., Inc., 386 So. 2d 1177, 1180 (Ala. Civ. App. 1980), and ' "the parties and pleadings in one action do not become parties and pleadings in the other," ' Ex parte Flexible Prods. Co., 915 So. 2d 34, 50 (Ala. 2005) (quoting Teague v. Motes, 57 Ala. App. 609, 613, 330 So. 2d 434, 438 (Ala. Civ. App. 1976)), a trial court may specify that all filings be made in only one case, see Rule 42(a), Ala. R. Civ. P. (indicating that, once actions are consolidated, a trial court 'may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay'). However, … although consolidated, 'each action retains its separate identity and thus requires the entry of a separate judgment.' League [v. McDonald], 355 So. 2d [695,] 697 [(Ala. 1978)] (emphasis added)").

2The father appended to his petitions for the writ of mandamus a

copy of the February 6, 2024, order indicating that it was entered in the modification action. He did not include a copy of any order entered in the child-support action.

5 CL-2024-0295 and CL-2024-0296

agreement regarding custody, visitation, and child support. The trial

court stated that "a trial will be set [on those issues] once discovery is

complete."

The father filed these petitions for the writ of mandamus on April

24, 2024. 3 In his mandamus petitions, the father argues that the trial

court lacked jurisdiction to enter its order setting aside the child-custody

and child-support provisions of the divorce judgment. Thus, although the

petitions were not timely filed, see Rule 21(a)(3), Ala. R. App. P.

(providing that "[t]he presumptively reasonable time for filing a petition

seeking review of the order of a trial court … shall be the same as the

time for taking an appeal"), this court may consider the father's petitions.

See Ex parte Murray, 267 So. 3d 328, 332 (Ala. Civ. App. 2018) (citing to

our supreme court's opinion in Ex parte K.R., 210 So. 3d 1106 (Ala. 2016),

and explaining that our supreme court has held that, "when an untimely

petition for a writ of mandamus raises an issue pertaining to the

3The petition relating to the modification action was assigned case

number CL-2024-0295; the petition relating to the child-support action was assigned case number CL-2024-0296. 6 CL-2024-0295 and CL-2024-0296

jurisdiction of the lower court, it may consider the jurisdictional

argument").

" 'A writ of mandamus is an extraordinary remedy, and it will be "issued only when there is: (1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court." ' "

Ex parte Jordan, 779 So. 2d 183, 184 (Ala. 2000) (quoting Ex parte P&H

Constr. Co., 723 So. 2d 45, 47 (Ala. 1998), quoting in turn Ex parte United

Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993)).

In his mandamus petitions, the father contends that the trial court

acted outside its jurisdiction by granting the mother relief cognizable

under Rule 60(b)(3), Ala. R. Civ. P., when the mother had not asked for

such relief. He further argues that the relief awarded to the mother was

time-barred because a motion seeking relief from a judgment under Rule

60(b)(3) for "fraud, misrepresentation, or other misconduct of an adverse

party" must be filed within four months of the entry of the judgment. We

disagree.

The father is correct that the mother's pleadings had not explicitly

requested the relief that the trial court afforded her. Indeed, the mother 7 CL-2024-0295 and CL-2024-0296

filed a petition to modify the divorce judgment and did not file either a

Rule 60(b) motion in the divorce action or an independent action

explicitly seeking to set aside the divorce judgment based on fraud on the

court. However, the mother contends that the substance of the

allegations contained in her modification petition constituted an

independent action seeking to have the divorce judgment set aside for

fraud on the court, which is not subject to the four-month limitation of

Rule 60(b)(3) and may be brought within three years of the entry of the

judgment. See Rule 60(b) (providing that "[t]his rule does not limit the

power of a court to entertain an independent action within a reasonable

time and not to exceed three (3) years after the entry of the judgment …

to relieve a party from a judgment, order, or proceeding, or to set aside a

judgment for fraud upon the court").

At the pendente lite hearing, the father testified that he had drawn

up the January 2023 agreement when the mother had objected to

provisions of the December 2022 agreement, which she had already

signed, to appease the mother or "to keep her calm and without arguing."

Although he attempted to characterize his statements to the mother as

8 CL-2024-0295 and CL-2024-0296

something other than misrepresentation, he finally admitted that he had

told the mother in January 2023 that he intended to remain in Alabama,

despite the fact that he had every intention of relocating to Wisconsin,

albeit not immediately. He also admitted that the parties had generally

followed the provisions of the January 2023 agreement during the time

that he had lived in Alabama between the entry of the divorce judgment

in March 2023 and his relocation to Wisconsin in August 2023. He

testified that, when he informed the mother that he intended to move to

Wisconsin in August 2023, the mother had screamed, had punched

things, and had thrown things around the yard in the presence of the

children. He indicated that he had misled the mother about his intention

to remain in Alabama because he did not want her to "freak out."

The mother testified that she had been aware that the December

2022 agreement had been incorporated into the divorce judgment. She

also admitted that she had not made any attempt after the entry of the

divorce judgment to have the divorce judgment set aside, despite her

contention that the January 2023 agreement was the custody agreement

under which the parties had operated. She further admitted that she

9 CL-2024-0295 and CL-2024-0296

had asked the father during the summer of 2023 to file a joint petition to

modify the divorce judgment to reflect the details of the January 2023

agreement.

During the February 5, 2024, hearing, the trial court interjected the

issue of setting aside the divorce judgment, stating: "So in that case,

there was technically no agreement when it was filed as an uncontested

divorce; therefore, I should set the entire divorce aside and y'all are

remarried." The attorney for the mother responded: "I would agree that

the motion to set aside the agreement should have been filed." After some

further discussion, the trial court concluded: "The way I interpret it, …

it's a little of both, your emergency motion for custody … and the way I

interpret what you are saying there may be a petition to set aside the

original agreement as well." Counsel for the father did not object to the

trial court's characterization of the issues to be considered at the

pendente lite hearing.

Based on our review of the statements made by the trial court

during the pendente lite hearing, it appears that the trial court

considered the mother's custody-modification petition as also stating a

10 CL-2024-0295 and CL-2024-0296

claim seeking to have the divorce judgment set aside because of the

father's misrepresentations that he had made to the mother and his

actions in presenting the December 2022 agreement to the trial court as

the agreement of the parties, when, in fact, the parties had made a

separate and different agreement respecting custody of the children.

Although the misrepresentations made by the father to the mother would

be properly cognizable under Rule 60(b)(3), and although the father is

correct that any relief available under Rule 60(b)(3) would be time-barred

because the modification action was not filed within four months of the

entry of the divorce judgment, the father has overlooked the fact that

Rule 60(b) also provides that a party may seek to set aside a judgment

procured by fraud on the court through an independent action filed

within three years of the entry of that judgment. See, e.g., Moore v.

Moore, 849 So. 3d 969, 971 (Ala. Civ. App. 2002) (recognizing the

authority provided under Rule 60(b) for a trial court to entertain an

independent action to set aside a judgment based upon fraud on the

court).

11 CL-2024-0295 and CL-2024-0296

We find Ex parte Brice, 340 So. 2d 792 (Ala. 1976), to be apt

authority for the trial court's decision to set aside portions of the divorce

judgment. In Ex parte Brice, the parties had been divorced by a January

9, 1975, judgment entered by the Houston Circuit Court ("the circuit

court"), which had incorporated an agreement of the parties that required

Dr. Donald Brice ("the former husband") to pay June Brice ("the former

wife") alimony, required the former wife to pay certain specified debts,

and required the former husband to pay the remaining debts of the

parties. 340 So. 2d at 793. On May 24, 1975, the former husband filed a

petition requesting modification of the January 1975 divorce judgment

because, he alleged, the former wife had not disclosed certain marital

debts, including debts incurred through the forging of his signature. Id.

The circuit court held a hearing at which it heard oral testimony, after

which it entered a judgment containing several findings of fact, including

a finding "that fraud was practiced on [the former husband] by [the

former wife] in inducing him to enter the agreement made a part of the

[January 1975 divorce judgment]" and "[t]hat fraud was practiced on the

Court in that [the former wife] asked the court to make this agreement

12 CL-2024-0295 and CL-2024-0296

part of the [January 1975 divorce judgment]." Id. at 794. Based on its

findings, the circuit court modified the January 1975 divorce judgment

to require the former husband to pay the undisclosed debts of the former

wife but to divert $1,000 of the former wife's periodic alimony to the

discharge of those debts. Ex parte Brice, 340 So. 2d at 794. Although

this court concluded that the former husband's request to set aside the

previous judgment on the ground of fraud was cognizable under Rule

60(b)(3) and had been filed outside the four-month period during which

such relief could be sought and reversed the judgment, Brice v. Brice, 340

So. 2d 788 (Ala. Civ. App. 1976), our supreme court reversed this court's

judgment, concluding that the request that the January 1975 divorce

judgment be set aside had been brought within the three-year period for

seeking relief from a judgment based upon fraud on the court, and

remanded the case with instructions that we affirm the circuit court's

judgment. Ex parte Brice, 340 So. 2d at 794-95; see also Hill v. Hill, 523

So. 2d 425, 428 (Ala. Civ. App 1987) (affirming a judgment setting aside

a previous judgment based on a conclusion that a false averment made

intentionally in a joint petition to a trial court amounted to fraud on the

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court); but see McPherson v. King, 437 So. 2d 548 (Ala. Civ. App. 1983)

(concluding that any misleading statements made by a husband to induce

a wife to enter into a settlement agreement that did not provide for the

division of the parties' personal property was merely fraud between the

parties and not fraud on the court).

Because the trial court had the authority under Rule 60(b) to treat

the wife's petition for modification also as an independent action seeking

to set aside the divorce judgment for fraud practiced on the court, the

father has failed to establish a clear legal right to relief from the pendente

lite order setting aside the child-custody and child-support provisions of

the divorce judgment. Accordingly, his petition in case number CL-2024-

0295, seeking relief from the February 6, 2024, order entered in the

modification action, is denied. As previously noted, the father did not

append to his petitions a copy of the February 6, 2024, order indicating

that it had been entered in the child-support action, see Rule 21(a)(1)(F),

Ala. R. App. P. (requiring that the petitioner append to the petition for

the writ of mandamus a copy of the order of which he is seeking review);

thus, we dismiss his petition in case number CL-2024-0296. See Ex

14 CL-2024-0295 and CL-2024-0296

parte McConico, 315 So. 3d 610, 612-13 (Ala. Civ. App. 2020) (explaining

that this court dismisses those petitions not properly supported with the

necessary parts of the record, including the order or orders challenged in

the petition).

CL-2024-0295 -- PETITION DENIED.

CL-2024-0296 -- PETITION DISMISSED.

Moore, P.J., and Hanson, Fridy, and Lewis, JJ., concur.