McCarter v. Juno

202 So. 3d 679
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 22, 2016
Docket2150134
StatusPublished

This text of 202 So. 3d 679 (McCarter v. Juno) 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
McCarter v. Juno, 202 So. 3d 679 (Ala. Ct. App. 2016).

Opinion

DONALDSON, Judge.

Bradley Michael Juno filed a petition for a writ of mandamus in this court, requesting that this court direct the Winston Circuit Court (“the trial court”) to set aside its September 25, 2015, order amending a previous protection order entered by the trial court pursuant to the Alabama Protection from Abuse Act (“the PFAA”), codified at § 30-5-1 et seq., Ala.Code 1975. We deny the petition.

On September 18, 2015, Rachel Michelle McCarter filed a petition for protection from abuse (“the PFA petition”) in the trial court against Juno, her husband, pursuant to the PFAA, The circuit clerk docketed the PFA petition as case no. DR-15-14 (“the PFA case”). In the PFA petition, McCarter alleged, among other things, that Juno had hit her and that he had “done it before.” On the same day McCarter filed the PFA petition, the trial court signed an ex parte order of protection (“the initial PFA order”) enjoining Juno from committing acts of abuse or threatening further abuse against McCar-ter; restraining Juno from harassing, stalking, annoying, telephoning, contacting, or otherwise communicating with McCar-ter; ordering Juno to stay away from McCarter’s place of employment; and directing Juno to be removed from the marital residence. The initial PFA order was stamped “filed” by the circuit clerk on September 22, 2015. The trial court also ordered possession of a vehicle to McCar-ter and prohibited Juno from transferring, concealing, encumbering, or otherwise disposing of funds in a bank account. In the initial PFA order, the tidal court stated that text messaging between the parties would be permitted. The trial court set the matter for a final hearing to be held on September 25, 2015. On September 24, 2015, McCarter filed a complaint for a divorce in the trial court, which the circuit clerk docketed as case no. DR-15-900115 (“the divorce case”).

According to the materials submitted to this court, Juno was never served with process in the PFA case. However, it is undisputed that McCarter sent a photograph of the initial PFA order to Juno via text message. In the same message, McCarter also notified Juno of the September 25 hearing in the PFA case and told him that he could obtain a copy of the initial PFA order from the Winston County Sheriffs Department.

On September 25, 2015, the trial court held a hearing on McCarter’s PFA petition. Following the hearing, the trial court entered an amended ex parte order of protection in the PFA case (“the amended PFA order”). In the amended PFA order, the trial court stated:

“Appearing on [Juno’s] behalf, for the limited purposes of arguing failure of service and requesting a continuance of the hearing, was Katherine Wright Haynes, Esquire, Rose Law Firm. Counsel for [Juno] confirmed her client’s knowledge of the Petition, its contents and of the hearing date. The Court finds that [Juno] is avoiding service.
“It is therefore ORDERED, ADJUDGED and DECREED as follows:
“1. The ex parte petition for protection from abuse order entered September 22, 2015, shall remain in full force and effect.
“2. [McCarter] shall have exclusive use and possession of the marital residence and all personal property located therein, including, but not limited to, household furniture and furnishings.
“3. [Juno] is restrained and enjoined from going in or upon the premises occupied by [McCarter] and from harass[681]*681ing, intimidating, threatening, assaulting, attacking, telephoning, contacting or interfering with her in any manner.
“4. [McCarter] shall have the exclusive use and possession of the 2015 BMW X5 and the 2015 BMW 5351.
“5. [McCarter] is awarded financial support from [Juno] of $700.00 each week. [Juno] shall deposit this sum each week into the Regions joint checking account.
“6. [Juno] shall be solely responsible for payment of all utilities, homeowners insurance and taxes on the marital residence.
“7. [Juno] is restrained and enjoined from encumbering, concealing or disposing of any monetary assets.
“8. Hearing shall be set upon proper motion.”

On September 30, 2015, McCarter filed a motion to consolidate the PFA case and the divorce case. Both cases were then assigned to a different trial judge than the one who had entered the orders in the PFA case. The new trial judge entered an order on October 7, 2015, granting -the motion to consolidate the two cases.

On October 7, 2015, Juno’s attorney filed notices of appearance in the PFA case and in the divorce case. On October 12, 2015, Juno filed a motion to strike certain statements contained in the amended PFA order pertaining to the trial court’s determination that he had avoided service of process. Specifically, Juno requested the trial court to strike the following statements from the amended PFA order: “Counsel for [Juno] confirmed her client’s knowledge of the Petition, its contents and of the hearing date. The Court finds that [Juno] is avoiding service.” The motion did not specifically request the trial court to set aside the amended PFA order or any of relief granted by the trial court in the amended PFA order.

On November 6, 2015, Juno filed a petition for a writ of mandamus in this court requesting that this court direct the trial court to set aside the amended PFA order on the basis that, he contends, the trial court improperly amended the initial PFA order when he had not been properly served with notice of the PFA petition pursuant to Rule 4, Ala. R. Civ. P.

“ ‘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 Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995)).

Juno attached to the petition for a writ of mandamus in this court an affidavit of his attorney dated November 6, 2015, in which she testifies regarding the events leading up to and concerning the September 25, 2015, hearing in the PFA case. Although the affidavit contains the caption and the style of the divorce case, the affidavit does not reflect that the affidavit, or the testimony contained within the affidavit, was presented to the trial court. Therefore, the affidavit has not been considered by this court, because

“[i]t is well settled that, ‘in a mandamus proceeding, this Court will not consider evidence not presented to the trial court.’ Ex parte Cincinnati Ins. Co., 51 So.3d 298, 310 (Ala.2010). See Ex parte Ford Motor Credit Co., 772 So.2d 437, 442 (Ala.2000)(‘ “On review by mandamus, we must look at only those facts before the trial court.”’ (quoting Ex parte Baker, 459 So.2d 873, 876 (Ala. [682]*6821984))). ‘[T]his Court is bound by the [materials before it], and it cannot consider a statement or evidence in a party’s brief that was not before the trial court.’ Ex parte Pike Fabrication[, Inc.], 859 So.2d [1089] at 1091 [(Ala. 2002) ].”

Ex parte East Alabama Med. Ctr., 109 So.3d 1114, 1117-18 (Ala.2012).

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Related

Ex Parte Baker
459 So. 2d 873 (Supreme Court of Alabama, 1984)
Ex Parte Perfection Siding, Inc.
882 So. 2d 307 (Supreme Court of Alabama, 2003)
Ex Parte Ford Motor Credit Co.
772 So. 2d 437 (Supreme Court of Alabama, 2000)
Ex Parte Integon Corp.
672 So. 2d 497 (Supreme Court of Alabama, 1995)
Green v. Morris
108 So. 3d 1010 (Supreme Court of Alabama, 2012)
Tinney v. East Alabama Medical Center
109 So. 3d 1114 (Supreme Court of Alabama, 2012)
Peacock v. Cincinnati Insurance Co.
51 So. 3d 298 (Supreme Court of Alabama, 2010)
Pilson v. City of Prattville
56 So. 3d 684 (Court of Civil Appeals of Alabama, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
202 So. 3d 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarter-v-juno-alacivapp-2016.