Ex parte Hunter Williams PETITION FOR WRIT OF MANDAMUS ( 2022 )

REL: December 9, 2022
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
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may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
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_________________________
Ex parte Hunter Williams
PETITION FOR WRIT OF MANDAMUS
(In re: William P. Gowan
v.
Hunter Williams)
(Elmore Circuit Court, DR-14-900370.04)
MOORE, Judge.
Hunter Williams ("the mother") filed a petition for a writ of
mandamus asking this court to direct the Elmore Circuit Court ("the trial
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court") to vacate its August 31, 2022, order, in which the trial court "set
aside" part of an agreement entered into by the mother and William P.
Gowan ("the father") relating to the custody of their child. For the
following reasons, we deny the petition.
Background
The materials submitted in support of and in opposition to the
petition for a writ of mandamus indicate the following. The parties were
never married, but their relationship produced a child who was born in
2012. In a judgment entered in 2017, the trial court awarded the parties
joint legal custody, and the mother sole physical custody, of the child,
subject to the father's right to visitation. In 2020, the father filed a
petition to modify the 2017 judgment. On February 16, 2022, when the
case was called for trial, the parties announced in open court that they
had reached a settlement agreement. The attorneys for the parties
informed the trial court of the terms of the settlement agreement, which
provided, among other things, that the parties would share joint legal
and joint physical custody of the child and that, following the end of the
2021-2022 school year, the child would reside with the mother during
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subsequent school years. After placing each party under oath, the trial
court questioned each party as to whether the attorneys had accurately
stated the agreement and questioned the guardian ad litem for the child
regarding whether she also approved of the agreement. After each party
and the guardian ad litem answered affirmatively, the trial court
concluded the proceedings and entered an order providing, in pertinent
part: "Agreement accepted by this Court. Written order of agreement to
follow."
The parties drafted proposed orders for the trial court, but neither
party submitted a proposed order for the trial court to enter as a final
judgment in the case. On August 2, 2022, the father filed a motion
asserting that it would be in the best interests of the child to set aside
the settlement agreement based on new facts that had arisen since the
February hearing. The mother filed an objection to the motion. On
August 4, 2022, the father filed a motion requesting that the trial court
enter an order allowing the father to enroll the child in a school in Oak
Mountain. On August 5, 2022, the mother filed a motion requesting that
the trial court enforce the settlement agreement, order the father to
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return the child to her upon the commencement of the 2022-2023 school
year, and allow the child to attend school in Tallassee, where the child
was already enrolled.
On August 11, 2022, the trial court entered an order granting the
father's motion to allow the child to enroll in an Oak Mountain school and
set the case for a hearing on the father's motion to set aside the
settlement agreement. On August 31, 2022, the trial court, after
receiving arguments from the parties and the guardian ad litem for the
child, entered an order providing, in pertinent part: "Motion to set aside
settlement agreement is granted, insofar as it [a]ffects the present
custody and school attendance on the parties' child for the 2022-2023
school year." On October 6, 2022, the mother filed this petition for the
writ of mandamus.
Issues
The mother contends that the August 31, 2022, order should be
vacated because, she says, the parties entered into a binding agreement
in open court on February 16, 2022, and the trial court could not modify
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that agreement without the consent of both parties and without receiving
evidence to support a modification.
Standard of Review
"Mandamus is an extraordinary remedy. An appellate
court will grant a petition for a writ of mandamus only when
'(1) the petitioner has a clear legal right to the relief sought;
(2) the respondent has an imperative duty to perform and has
refused to do so; (3) the petitioner has no other adequate
remedy; and (4) this Court's jurisdiction is properly invoked.'
Ex parte Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000)
(citing Ex parte Mercury Fin. Corp., 715 So. 2d 196, 198 (Ala.
1997))."
Ex parte Amerigas, 855 So. 2d 544, 546-47 (Ala. Civ. App. 2003).
Analysis
In Porter v. Porter, 441 So. 2d 921 (Ala. Civ. App. 1983), Lucy and
Milton Porter entered into an agreement to settle their divorce action.
The Porters' attorneys dictated the terms of the settlement agreement
into the record. The Morgan Circuit Court ordered the parties to reduce
the settlement agreement to written form to be submitted to the court for
incorporation into the final judgment of divorce. Lucy subsequently filed
a motion to enforce the settlement agreement, to which Milton responded
by claiming that the settlement agreement was not binding because Lucy
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had fraudulently induced him into the settlement agreement. The circuit
court refused to set aside the settlement agreement. On appeal, Milton
asserted that the circuit court had erred in enforcing the settlement
agreement. This court rejected that argument, relying on Rule 47, Ala.
R. App. P., which provides, in pertinent part, that "agreements made in
open court ... are binding, whether such agreements are oral or written,"
and on Brocato v. Brocato, 332 So. 2d 722, 724 (Ala. Civ. App. 1976), in
which this court rejected an argument that a settlement agreement could
be repudiated "before any of the provisions were carried out."
The mother relies heavily on Porter in arguing that the trial court
was required to enforce the settlement agreement in this case. However,
the mother overlooks a significant part of the Porter opinion, in which
this court stated: "It must be recognized that though an agreement may
be binding upon the parties in a divorce case, it is not binding upon the
court. In rendering judgment, the court may accept or reject such an
agreement, in whole or in part." 441 So. 2d at 924. In this case, the trial
court did not render a judgment adopting the settlement agreement. The
trial court initially indicated in its February 16, 2022, order that it had
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"accepted" the settlement agreement, but the trial court further indicated
that it intended to "follow" up with a written judgment. Under Rule
58(b), Ala. R. Civ. P., a judgment or order becomes effective once it is
reduced to a writing signed or initialed by the judge that "indicates an
intention to adjudicate, considering the whole record, and … indicates
the substance of the adjudication." In this case, the materials submitted
by the parties indicate that the trial court requested proposed orders
from the parties before formally approving the settlement. Our supreme
court has held that a trial court's decision indicating that a motion is due
to be granted and directing counsel to draft a proposed order granting the
motion does not amount to the entry of a judgment or order under Rule
58(b). See Ex parte Chamblee, 899 So. 2d 244 (Ala. 2004). Unless the
trial court enters a written order setting forth its approval of the
settlement agreement, the settlement agreement is not part of a
judgment rendered by the trial court.
In Blasé v. Brewer, 692 N.W.2d 785 (S.D. 2005), the unmarried
parents of a minor child reached a mediated settlement agreement
regarding custody and visitation issues relating to their child. A South
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Dakota circuit court approved the settlement agreement, but, before a
final judgment was entered, the court allowed the unwed mother to
repudiate the settlement agreement, and the case proceeded to trial. The
unwed father appealed, asserting that the settlement agreement was
binding under South Dakota law. The Supreme Court of South Dakota
disagreed, holding that, although a state statute indicated that mediated
settlement agreements generally would be binding upon approval of the
court, in child-custody cases a court can always revisit its determination
to assure that the settlement agreement serves the best interests of the
child. The South Dakota Supreme Court acknowledged that the lower
court had initially approved the settlement agreement but held that the
lower court "still owed a duty to ensure that the agreement was in the
best interest of the child before issuing a final judgment." 692 N.W.2d at
787. The South Dakota Supreme Court further held that the lower court
could reject the settlement agreement without proof of changed
circumstances.
In this case, Rule 47, Ala. R. App. P., provides that agreements
made in open court shall be binding; however, despite that wording, the
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trial court retained the authority to reject the settlement agreement, in
whole or in part, in a subsequent judgment if it determined that such a
rejection would be in the best interests of the child. In this case, by
granting the father's motion to set aside part of the settlement
agreement, the trial court at least impliedly determined that part of the
settlement agreement should not be enforced because it did not serve the
best interests of the child.
The mother complains that the trial court did not receive any
evidence as to the child's best interests during the August 31, 2022,
hearing. See generally Williams v. Williams, 318 So. 3d 508 (Ala. Civ.
App. 2020). However, the materials submitted by the mother in support
of her mandamus petition do not disclose that the mother ever argued to
the trial court that it could not set aside the settlement agreement
without first holding an evidentiary hearing. The materials show only
that the trial court scheduled a hearing on the father's motion to set aside
the settlement agreement and that the mother's counsel attended the
hearing, along with the father's counsel and the guardian ad litem for the
child. The materials do not contain any written request for an
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evidentiary hearing, and, because the hearing was not on the record, we
cannot discern whether the mother orally requested an evidentiary
hearing or objected to the trial court's ruling without first conducting an
evidentiary hearing. From all that appears before this court, the mother
waived any right she may have had to an evidentiary hearing. See Rule
21(a)(1)(F), Ala. R. App. P. (requiring petitioner to include in an appendix
to the petition for the writ of mandamus all materials "essential to
understanding the matters set forth in the petition"). This court cannot
issue a writ of mandamus to compel the trial court to perform an act that
it was never requested to perform. Ex parte City of Prattville, 56 So. 3d
684, 689 (Ala. Civ. App. 2010).
The mother has not shown a clear legal right to an order compelling
the trial court to vacate the August 31, 2022, order. Therefore, we deny
the petition for a writ of mandamus.
PETITION DENIED.
Thompson, P.J., and Hanson and Fridy, JJ., concur.
Edwards, J., concurs in the result, without opinion.
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