Mobayed v. Mobayed

689 So. 2d 890, 1997 Ala. Civ. App. LEXIS 21, 1997 WL 15287
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 17, 1997
Docket2951486
StatusPublished

This text of 689 So. 2d 890 (Mobayed v. Mobayed) 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
Mobayed v. Mobayed, 689 So. 2d 890, 1997 Ala. Civ. App. LEXIS 21, 1997 WL 15287 (Ala. Ct. App. 1997).

Opinion

MONROE, Judge.

Tina Smith Mobayed petitions this court for a writ of mandamus ordering Judge Donald Stewart of the Circuit Court of Etowah County to vacate his order referring to a referee her request for a hearing on penden-te lite child support and child custody, to enter an order setting a circuit court hearing on these issues, and to issue an order advising all attorneys practicing in the Sixteenth Judicial Circuit that the memorandum of August 16,1994, is withdrawn.

The relevant facts are as follows: Hayt-ham Mobayed filed a divorce complaint on July 22, 1996, and his wife — the petitioner here — filed her answer and counterclaim on August 22, 1996. On September 13, 1996, the petitioner filed a motion to set a hearing in circuit court on the issues of pendente lite child custody and child support. In this motion, she objected to having these matters heard by the domestic referee, as is required by the practice of the Sixteenth Judicial Circuit. The trial court denied her motion and ordered that pendente lite child custody and child support be determined by the domestic referee. The petitioner argues that the circuit’s practice violates Rules 53(b) and 83, Ala. R. Civ. P.

Mandamus is an extraordinary remedy, and requires a showing of: “ ‘(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 Johnson, 638 So.2d 772, 773 (Ala.1994), quoting Ex parte Edgar, 543 So.2d 682, 684 (Ala. 1989).

The Sixteenth Judicial Circuit’s practice of referring cases is explained in a memorandum signed by the circuit’s judges and addressed to members of the bar. The memorandum, a copy of which is attached as Appendix A to this opinion, reveals that since May 11,1982, the circuit has required that all pendente lite petitions and divorce modification petitions be heard by the domestic referee. Apparently, the circuit judges had historically allowed parties to file objections to the referee. However, as to the continued use of such objections, the memorandum states:

“The Judges have met and agreed that effective September 1, 199k, the Judges of this Circuit will not accept objections to the Domestic Referee cm all Pendente Lite Petitions and Divorce Modification Petitions. Such matters shall be heard by the Referee in accordance with Rule 53(d) and (e).”

(Emphasis in original.)

Although the circuit’s practice of uniformly referring certain types of cases to a referee has been discussed by this court and by the Supreme Court, it appears that this is the first instance in which proof of the practice has been presented. See, Garmon v. Alabama State Bar, 570 So.2d 633, 634 (Ala. 1990) cert. denied 499 U.S. 921, 111 S.Ct. 1312, 113 L.Ed.2d 246 (1991) (noting that “the respondent has presented no evidence tending to show that the requirements of Rule 53(b) are generally not observed in domestic relations cases in Etowah County or that ‘routine’ domestic relations cases are automatically assigned to Higgins without court orders,”); and Tallant v. Tallant, 564 So.2d 971, 972-73 (Ala.1990) (noting that “[w]e find no evidence in the record to support the appellant’s contention that Rule 53, Alabama Rules of Civil Procedure, has been violated” and noting on rehearing that “we find the record devoid of any legal evidence supporting the contention that the referee in this ease is a full-time referee to whom all cases are referred”). Indeed, this appears to be the first time the circuit’s practice has been presented squarely before an appellate court for review, and the evidence before this court shows that the circuit uniformly refers [892]*892all pendente lite petitions and divorce modification petitions to a full-time referee.

First, we address the issue whether the circuit’s practice violates Rule 83, Ala. R. Civ. P., which provides that “[a]ll local rules are abolished effective April 14,1992, and no local rules shall thereafter be permitted.” Alabama’s Rules of Civil Procedure were promulgated with the intent of providing uniformity among the state’s judicial circuits and preventing “a haphazard crazy-quilt of varying procedures from one circuit to the next.” Ex parte Ward, 540 So.2d 1350 (Ala. 1988), on remand, 540 So.2d 1353 (Ala.Crim. App.1989). Local rules could continue to be enforced after the effective date of Rule 83, if they were approved by the supreme court. See Epperson v. Poe, 533 So.2d 204 (Ala. 1988); see generally committee comments and history, Rule 83, Ala. R. Civ. P. Pursuant to Rule 83, as amended in 1992, circuits could no longer retain or create local rules under the guise of “administrative orders” or “court administrative orders.” Committee Comments, Rule 83, Ala. R. Civ. P. However, it was the intent of the drafters of the Rule as amended in 1992 to continue to allow trial courts to issue orders essential to the administration of their dockets in areas not covered by the Alabama Rules of Civil Procedure. Id.

The circuit’s practice, which is in effect a blanket rule, regardless of its nomenclature, is a perfect example of the type of rule that Rule 83 abolished. This court has received no indication that the circuit’s rule has been approved by the Supreme Court.. Even if the circuit’s rule had been approved as not inconsistent with Rule 83, it must nevertheless cease to be enforced because it governs a practice already covered by a Rule of Civil Procedure and it is inconsistent with the provisions of that rule.

Indeed, the petitioner also argues that the circuit’s practice violates Rule 53(b), Ala. R. Civ. P., which states as follows:

“(b) Reference. A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.”

(Emphasis, added.) Clearly, the circuit’s practice of referring all pendente lite petitions and divorce modification petitions to the referee violates Rule 53(b), because the references are not the exception but are openly the rule.

This court has previously held that Rule 53 permits the appointment of masters/referees at the discretion of the trial court. Tallant, 564 So.2d at 972. However, Rule 53(b) specifically limits the matters that can be referred to a master/referee in nonju-ry cases to matters of account and difficult computations, or matters as to which there has been a showing of an exceptional condition requiring a reference. The computation of child support arrearage has been determined to be a “matter of account” within the meaning of Rule 53(b). Tallant, 564 So.2d at 972. Although we maintain that computations such as that of child support arrearage can be considered a “matter of account” under Rule 53(b), we clarify that the appointment of a master/referee in these instances cannot be done routinely in all cases. Trial courts must use their discretion in determining which cases involve complicated computations or other characteristics deeming them appropriate for referral in accordance with Rule 53(b).

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Related

La Buy v. Howes Leather Co.
352 U.S. 249 (Supreme Court, 1957)
Harp v. Harp
462 So. 2d 372 (Court of Civil Appeals of Alabama, 1984)
Hall v. Mazzone
540 So. 2d 1353 (Supreme Court of Alabama, 1988)
Ex Parte Ward
540 So. 2d 1350 (Supreme Court of Alabama, 1988)
Garmon v. Alabama State Bar
570 So. 2d 633 (Supreme Court of Alabama, 1990)
Ex Parte Edgar
543 So. 2d 682 (Supreme Court of Alabama, 1989)
Epperson v. Poe
533 So. 2d 204 (Supreme Court of Alabama, 1988)
Tallant v. Tallant
564 So. 2d 971 (Court of Civil Appeals of Alabama, 1990)

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Bluebook (online)
689 So. 2d 890, 1997 Ala. Civ. App. LEXIS 21, 1997 WL 15287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobayed-v-mobayed-alacivapp-1997.