DocketNumber: 2170352
Citation Numbers: 258 So. 3d 1151
Judges: Moore
Filed Date: 2/23/2018
Status: Precedential
Modified Date: 7/29/2022
Melanie B. Paulk ("the mother") petitions this court for a writ of mandamus directing the Mobile Circuit Court ("the trial court") to comply with this court's remand instructions issued in her action against Robert A. Paulk ("the father"). See Paulk v. Paulk,
On January 11, 2017, Retired Judge Donald Banks entered an order on remand following this court's reversal. After the mother filed a timely postjudgment motion and that motion was denied, the mother filed a notice of appeal to this court. See Paulk v. Paulk,
On September 12, 2017, Mobile County Circuit Judge John R. Lockett entered an order stating: "Donald Banks, retired Circuit Judge, having been appointed this date pursuant to Ala. Code [1975, § ] 12-1-14.1..., is hereby assigned this case to conduct any and all further proceedings." On November 29, 2017, Judge Banks entered an order, similar to the January 11, 2017, order, providing, in pertinent part:
"1. THAT all motions for contempt are hereby denied.
"2. THAT a judgment is awarded in favor of the [mother] and against the [father] in the amount of $21,820.00 representing monies the [father] should have paid pursuant to prior Court orders but did not pay.
"3. THAT a judgment is awarded in favor of the [father] and against the [mother] in the amount of $19,000.00 representing monies the [mother] should have paid pursuant to prior Court orders but did not and which were paid by the [father]."
The mother filed her mandamus petition with this court on January 5, 2018.
In her petition, the mother argues that the trial court's November 29, 2017, order failed to comply with this court's remand instructions in Paulk II.
" ' "The writ of mandamus is a drastic and extraordinary writ, to be 'issued only when 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 United Serv. Stations, Inc.,628 So.2d 501 , 503 (Ala. 1993) ; see also Ex parte Ziglar,669 So.2d 133 , 134 (Ala. 1995)." Ex parte Carter, [807 So.2d 534 ,] 536 [ (Ala. 2001) ]. '
" Ex parte McWilliams,812 So.2d 318 , 321 (Ala. 2001). A petition for a writ of mandamus is the proper method by which to bring before an appellate court the question whether the trial court, on remand, has complied with the appellate court's mandate. Ex parte Edwards,727 So.2d 792 , 794 (Ala. 1998).
"... [A]fter a case is remanded, the trial court may enter ' " '[n]o judgment other than that directed or permitted by the reviewing court.... The appellate court's decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence.' " 'Id. at 794 (quoting Ex parte Alabama Power Co.,431 So.2d 151 (Ala. 1983), quoting in turn 5 Am. Jur. 2d Appeal & Error § 991 (1962) )."
Ex parte Queen,
The mother specifically argues in her mandamus petition that the trial court "impermissibly alter[ed], amend[ed] or vacate[d] provisions of the July 21, 2015 Order where no further authority was given to the trial court to do so." We note that, in the original July 21, 2015, judgment, which we reversed with regard to the issues raised in Paulk I, the trial court "found the father in contempt for failing to pay child support and his portion of the children's medical expenses and found the mother in contempt for failing to pay the children's educational expenses."
The mother also argues that the trial court failed to follow this court's instruction in Paulk I"to calculate the amounts the parties owe."
PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.