Appealing a Pendente Lite Order

Whether the court intends it or not, pendente lite (temporary) orders for custody or visitation can have explosive consequences. Can you appeal a pendente lite order? The Alabama Court of Civil Appeals dealt with this question in P.B. v. P.C., Case No. 2050280 (Ala. Civ. App. June 30, 2006). The answer is no, but you can file a writ of mandamus.

The Marshall County Juvenile Court entered a pendente lite order in a dependency and custody dispute between the child’s father and her maternal grandmother (the mother had died). The maternal grandmother had reported to DHR that the child had told her that her father was sexually abusing her. An emergency room physician found no penetration of the child, and a DHR caseworker did not believe the child had been sexually abused.

The father cut off contact with the maternal grandmother. The maternal grandmother filed for grandparent visitation rights and later amended her claim to allege dependency. The Marshall County Juvenile Court issued a pendente lite order on December 23, 2005 citing evidence that the child had been sexually abused but stating that it was not clear who the perpetrator was. The pendente lite order called for an investigation of the sexual abuse allegations, home studies of the father and the maternal grandmother, and one weekend per month visitation for the maternal grandmother. The father appealed.

The appeals court acknowledged that “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu. See, e.g., Pace v. Utilities Bd. of Foley, 752 So. 2d 510, 511 (Ala. Civ. App. 1999).” However, it said, this was not a final judgment, and therefore the appeal was premature.

This appeal is from a nonfinal judgment. The underlying issues involved in this case have not been adjudicated by the juvenile court. The proper method of review of pendente lite orders is by a petition for the writ of mandamus. B.W.C. v. State Dep’t of Human Res., 582 So. 2d 579, 580 (Ala. Civ. App. 1991). The father has not sought a writ of mandamus in this case. Thus, this appeal must be dismissed. See B.W.C., 582 So. 2d at 580 (dismissing an appeal from a pendente lite award of child custody); see also S.S. v. T.R.A., 716 So. 2d 719, 720 (Ala. Civ. App. 1998) (stating that, because the father did not seek a writ of mandamus, his appeal must be dismissed).

Lee’s Note: Because the writ of mandamus is shrouded in mystery for most of us, I will devote some time to it tomorrow.