A writ of mandamus (man DAMM us) is a way to get appellate review of a case when an ordinary appeal would be inadequate. Technically, a writ of mandamus asks the appellate court to order a judge to do something. If the appellate court orders a judge not to do something, it’s called a writ of prohibition.
Category: Alabama
Information about divorce and family law in Alabama (where I practice law)
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.
Child’s Preference Is Not Enough
Alabama’s rule on what it takes to support a change of custody is murky, but one principle is working its way through the muddle: the preference of a child for a change in custody is not enough to justify a change. You’ll find the latest illustration of this in Marusich v. Bright, Case No. 2050035 (Ala. Civ. App. June 30, 2006).
Attorney Fees and Frivolous Litigation
When is a claim for custody so frivolous, so groundless, that the party filing it should pay the other party’s attorney fees for defending it? That’s the question the Alabama Court of Civil Appeals faced in Scarbourough v. Darling, Case No. 2040659 (Ala. Civ. App. June 30, 2006).
Relocation Statute Presumption with Joint Custody
Yesterday we reviewed the case of Toler v. Toler. In that case the Alabama Court of Civil Appeals balanced the McLendon rule of repose against the no-move presumption built into the relocation statute. The mother in Toler had sole physical custody. Today we deal with the flip side of that analysis, a case in which the relocating mother had joint physical custody with the father. The case is Drew v. McCullar, Case No. 2040866 (Ala. Civ. App. June 30, 2006).
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Relocation Statute Presumption
The Alabama Court of Civil Appeals has made its strongest statement yet in defense of, and interpreting, the Alabama Parent Child Relationship Protection Act, commonly known as the relocation statute. Speaking in its Per Curiam (for the Court) opinion in Toler v. Toler, Case No. 2040757 (Ala. Civ. App. June 30, 2006), the appeals court reversed a trial court’s decision to allow the mother of a child to move and take her child with her without rebutting the presumption against relocation built into the statute.
Alabama Relocation – Who Must Give Notice?
A couple of days ago we talked about when to give the notice required by the Alabama Relocation Act – the “Alabama Parent-Child Relationship Protection Act.” Today we’ll think through who must give the notice.
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Alabama Relocation – When To Give Notice
Alabama has succumbed more than any other to the Father’s Rights power complex, and it has the most restrictive relocation statute in the nation. How does its notice provision work? Let’s take a look. Today we’ll explore when to give the notice. Tomorrow we’ll think through who must give the notice and how to respond to it.
Standard for Adoption in Alabama
The right to adopt in Alabama is a creature of statute, not common law. So unless the statute “by express provision or necessary implication” confers the right of adoption, it doesn’t exist. Courts require strict adherence to the statutory requirements in adoption proceedings. Just how strict was the question before the Alabama Court of Civil Appeals in Hays v. Hays, Case No. 2040482 (Ala. Civ. App. June 23, 2006).
Appellate Jurisdiction and Postjudgment Motions
What happens to a case when one party has already filed a notice of appeal and the other files a postjudgment motion in trial court? The Alabama Court of Civil Appeals faced this question in Parker v. Parker, Case No. 2040696 (Ala. Civ. App. June 23, 2006). Short answer: the appeal is held in abeyance pending the resolution of the postjudgment motion.
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Relentlessly Applying Rule 59.1
This is another of the parade of cases indicating that lawyers are still prone to file postjudgment motions without fully understanding the operation of Alabama Rule of Civil Procedure 59.1. Robbins v. Robbins, Caso No. 2050316 (Ala. Civ. App. June 9, 2006). It’s all about the denial of a postjudgment motion by operation of law.
More About Setting Aside a Default Judgment
The Alabama Court of Civil Appeals has provided yet another illustration of its strong preference for setting aside default judgments when they concern the custody of a minor child. The case is Buster v. Buster, Case No. 2040191 (Ala. Civ. App. June 6, 2006). This one seems particularly appealing, so the appeals court’s ruling is no surprise.
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The Standard for Declaring a Parent Unfit
Mom and her new husband were addicted to methamphetamine, and somehow her oldest child ingested a near fatal dose. Since then, she has completed drug treatment and has continued to test negative for drugs. Her new husband didn’t complete the drug treatment program but has tested negative for drug use on several occasions. Is she unfit to be a parent? That’s the question presented by Patrick v. Williams, Case No. 2050203 (Ala Civ. App. May 26, 2006).
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How Did This Case Get This Far?
This is the case of a cross-state-border adoption. D.B. and T.B. v. M.A., Cases No. 2050034 and 2050277 (Ala. Civ. App. May 26, 2006). It should never have happened. Let us all hope it’s finished now.
What is a “Motion for Clarification”?
It may not show up in the Alabama Rules of Civil Procedure, but the Alabama Court of Civil Appeals has created rules about it – the so-called “Motion for Clarification.” You can read the court’s opinion in Moss v. Mosley, Case No. 2040992 (Ala Civ. App. May 26, 2006).
A “Deadbeats Don’t Pay Interest” Rule?
I’m scratching my head on this one. Maybe you can help me understand. This is Horwitz v. Horwitz, Case No. 2040760 (Ala. Civ. App. May 19, 2006). It’s actually the third time the case has been before the Alabama Civil Court of Appeals, because of a history of controversy about the husband’s failure to make the payments the trial court had ordered him to make to or for the benefit of his divorced wife. The issue that has me bumfuzzled is the appeals court’s approach to interest due on the judment.
Military Retirement in Alabama
Okay, here’s a quick quiz for you. When a couple divorces under Alabama law and the husband has served in the military for all the 13 years of the marriage, how much of his military retirement does federal law mandate that he share with his wife? The answer is zero. Mr. and Mrs. Meyer in Meyer v. Meyer, Case No. 2040486 (Ala. Civ. App. May 12, 2006) could have avoided a lot of anguish and legal bills if they had known that when they parted.
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Revisiting the Schiesz Case
I have egg on my face. The Alabama Court of Civil Appeals has withdrawn its opinion in the Schiesz case I told you about in February and substituted a new opinion. No problem there. But in reviewing the revised opinion, I realized that I misread its predecessor. I apologize.
I told you that the parties had divorced in January of 2005. I should have said they were already divorced and that the trial court ruled on postjudgment issues in 2005.
Standard for Changing Joint Custody
The Alabama Court of Civil Appeals has reversed a trial court judgment declining to change custody on the grounds that neither parent proved that the other was “unfit.” In Faust v Knowles, Case No. 2040456 (Ala. Civ. App. April 28, 2006), the appeals court reversed, saying the trial court should have looked instead to the best interest of the children.
Prickly World for Alabama DHR Staff
This is one of those Alabama supreme court cases that makes you cry for nearly everyone involved. Gowens v. Tys. S., Case No. 1041341, 1041413 (Ala. May 3, 2006). It’s all about whether a DHR investigative social worker can be sued by the people he or she is charged with protecting. The short answer is yes.