Fancher v. Fancher (In re Fancher)

272 So. 3d 654
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 14, 2018
Docket2171007
StatusPublished

This text of 272 So. 3d 654 (Fancher v. Fancher (In re Fancher)) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fancher v. Fancher (In re Fancher), 272 So. 3d 654 (Ala. Ct. App. 2018).

Opinion

DONALDSON, Judge.

Wendy Franks Fancher ("the former wife") filed a petition for a writ of mandamus seeking an order from this court directing the Dallas Circuit Court ("the trial court") to vacate an ex parte temporary restraining order it has entered and to dismiss the petition for a modification of custody filed by Robert Allen Fancher ("the husband") pursuant to the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala. Code 1975.

Facts and Procedural History

The former wife alleges the following facts in her mandamus petition. On November 9, 2014, the trial court entered a judgment in the parties' divorce action("the divorce action") that, among other things, divorced the former husband and the former wife, granted the former wife sole physical custody of the parties' two minor children, and granted specific rights of visitation to the former husband. On March 21, 2016, the trial court entered a "Final Order of Modification" in case no. DR-13-900089.01 that maintained sole physical custody of the children with the former wife, modified the former husband's child-support obligation, established a child-support arrearage payment, and modified the former husband's visitation rights. On January 26, 2018, the trial court entered a "Final Order of Modification" in case no. DR-13-900089.02 that, among other things, maintained sole physical custody of the children with the former wife and modified the former husband's visitation rights.

On June 12, 2018, the former wife notified the former husband via certified mail of her intent to relocate with the children to Enterprise. The former wife alleges that her notification was in accordance with the Alabama Parent-Child Relationship Protection Act. Materials submitted by the former wife indicate that the former husband received the notification on June 18, 2018. On July 11, 2018, the former husband, through counsel, mailed a letter to the former wife stating that he objected to the former wife's relocation with the children.

On August 5, 2018, the former husband filed in the trial court a petition to modify custody of the children, based upon the former wife's proposed relocation with the *656children. The former husband's petition was assigned case no. DR-13-900089.03 ("the .03 action"). Along with his petition to modify, the former husband also filed an "Objection to Relocation of the Children" and a "Petition for Emergency Pendente Lite Relief." On August 6, 2018, the former husband filed a "Motion for Ex Parte Temporary Restraining Order" in which he sought to restrain the former wife from relocating with the children. According to the submitted materials, the former husband's objection to relocation, his petition for emergency pendente lite relief, and his motion seeking an ex parte temporary restraining order were all filed in the divorce action.1

On August 7, 2018, the trial court entered an ex parte temporary restraining order in the .03 action that ordered the former wife to remain in Dallas County with the children or, alternatively, permitted the former wife to relocate, provided that the children remain in Dallas County. In its order, the trial court set the matter for a hearing on September 12, 2018.

On August 8, 2018, the former wife filed a "Motion to Vacate the Order of August 7, 2018, and Motion to Dismiss the Proceeding" in the trial court. In her motion, the former wife asserted that the former husband had failed to timely object to her proposed relocation and, therefore, had waived any objection to her relocating with the children. The former wife also challenged the entry of the ex parte temporary restraining order, asserting that the "Alacourt [State Judicial Information System] contained no motion being filed requesting the ex parte relief which had been granted." On that same day, the former wife filed an amended motion seeking to vacate the trial court's ex parte temporary restraining order based upon the former husband's objection to relocation, petition for emergency pendente lite relief, and motion seeking an ex parte temporary restraining order having been filed in the wrong case. In her amended motion, the former wife further asserted that the trial court lacked subject-matter jurisdiction based upon the former husband's having waived his objection to the proposed relocation, that the trial had court entered the ex parte temporary restraining order in violation of Rule 65, Ala. R. Civ. P., and that she had been denied due process by the trial court's having set a hearing for 36 days after the entry of the ex parte temporary restraining order.

On August 8, 2018, the former husband filed in the .03 action a single document encompassing a response to the former wife's motion to vacate, a motion for a "pickup order," a motion seeking to hold the former wife in contempt, and a request for a "clarification of order." The trial court did not rule on the pending motions before the former wife filed her mandamus petition.

On August 10, 2018, the former wife filed her mandamus petition in this court. The former wife also sought a stay of the trial court's ex parte temporary restraining order in her petition. On August 10, 2018, this court issued an order staying the trial court's ex parte temporary restraining order and requiring the former husband to file a response to the former wife's petition within seven days. The former husband timely filed his response with this court.

The former wife raises three issues in her petition. First, the former wife contends that the trial court lacks subject-matter *657jurisdiction over this matter because, she asserts, the former husband failed to pay the appropriate filing fee. Second, the former wife argues that the trial court's ex parte temporary restraining order was issued contrary to the requirements contained within Rule 65(b), Ala. R. Civ. P. Finally, the former wife argues that the trial court lacks subject-matter jurisdiction because, she asserts, the former husband waived his right to object to her relocation with the children.

Standard of Review

"Mandamus is a drastic and extraordinary writ, to be issued only where 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 Integon Corp., 672 So.2d 497, 499 (Ala. 1995).

"To justify the issuance of such a writ, there must be a clear showing of injury to the petitioner. [ Ex parte Johnson Land Co., 561 So.2d 506 (Ala. 1990) ]. The writ will not issue absent a clear abuse of discretion by the trial court or where the petitioner has some other adequate remedy. Ex parte Jones, 447 So.2d 709 (Ala. 1984) ; Ex parte Mid-Continent Systems, Inc., 447 So.2d 717 (Ala. 1984)."

Ex parte J.E.W.

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Bluebook (online)
272 So. 3d 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fancher-v-fancher-in-re-fancher-alacivapp-2018.