Ex parte Aris Hale PETITION FOR WRIT OF MANDAMUS

Rel: February 10, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
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Ex parte Aris Hale

PETITION FOR WRIT OF MANDAMUS

(In re: Aris R. Hale

v.

Benitra C. Colvin)

(Montgomery Circuit Court, DR-21-900404)

FRIDY, Judge.

Aris Hale ("the father") filed a petition for a writ of mandamus

asking this court to direct the Montgomery Circuit Court ("the trial

court") to vacate its, pendente lite order entered on December 12, 2022,
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awarding "primary physical custody" of A.S.H. ("the child") to Benitra C.

Colvin ("the mother"). For the reasons discussed herein, we grant the

petition.

Background

The materials submitted in support of and in opposition to the

father's petition indicate that in 2017 the Circuit Court of Johnson

County, Missouri ("the Missouri court"), entered a judgment divorcing

the parties and, by agreement of the parties, awarded the mother and the

father joint legal custody of the child and the father sole physical custody

of the child. That custody award modified a previous order that a German

court had entered regarding the child's custody. The father is in the

United States Air Force, and in 2019, he advised the mother of his intent

to move overseas with the child. The mother challenged the relocation of

the child and sought a custody modification in the Missouri Court

alleging, among other things, that the father had interfered with her

parenting time. On October 30, 2019, the Missouri court found that the

father's request to relocate was made in good faith but that such a move

would not be in the child's best interest. The Missouri court awarded the

mother and the father joint legal and joint physical custody of the child.

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However, because the father and the child then lived in Missouri and the

mother lived in Georgia, the Missouri court found that it was in the

child's best interest to continue to reside with the father subject to a

schedule of custodial periods set forth in the judgment.

At some point, which is not made clear in the materials before us,

the father and the child moved to Alabama. In June 2021, the father filed

a petition to register in the trial court the previous judgments of the

Missouri court. On July 12, 2021, the mother responded to the petition

saying that she consented to the registration of the Missouri court's

judgments; however, she filed a counterclaim seeking to hold the father

in contempt, alleging that he had failed to permit her to exercise her

court-ordered custodial rights and that it would be in the child's best

interests for her to have sole physical custody. That same day, the mother

filed a motion requesting an order directing the father to "immediately

relinquish" the child to the mother for her court-ordered summer

custodial period and asked for an expedited hearing.

The trial court held a hearing on July 16, 2021, and registered the

Missouri judgments. On July 23, 2021, the trial court entered an order

stating that the child had left the courtroom with the mother after the

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July 16 hearing. In the order, the trial court awarded the mother

visitation from July 16 until July 23, 2021, and again from July 25 to

August 4, 2021. The order directed the mother to allow the child to

communicate with the father if the child wished to speak to him.

On July 22, 2021, the father filed in the trial court a custody-

modification petition seeking sole physical custody of the child.

Additionally, he sought to have the mother held in contempt for allegedly

violating several provisions of the Missouri court's judgments regarding

her responsibilities during the child's visits with her, such as permitting

the child to communicate with him and keeping him informed of her

travels with the child during the child's visits. He also sought to have the

mother held in contempt because, he said, she had failed to pay him

court-ordered child support and to reimburse him for certain expenses

that he had incurred on behalf of the child.

On November 28, 2021, the mother filed in the trial court a new

motion seeking to hold the father in contempt in which she sought

temporary physical custody of the child, alleging that the father had

refused to allow her to exercise her custodial rights over Thanksgiving.

The father responded on December 20, 2021, saying that, despite his

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efforts, which he said had included having the child in counseling and

attempting to engage the mother in repairing what he said was the

estranged relationship between the mother and the child, the child did

not want to visit with the mother. Indeed, he requested that the trial

court suspend the mother's visitations until she worked with a counselor

to mend her relationship with the child.

On May 9, 2022, the trial court held an evidentiary hearing on the

issue of the father's alleged contempt for what the mother called the

"obstruction" of her visitation time with the child, who was then eleven

years old. At the hearing, the trial court pointed out that the visitation

issues raised in previous pleadings were moot because of the passage of

time.

The mother testified that she did not get to have the court-ordered

visitations for Thanksgiving and Christmas in 2021, adding that in

discussions with the father about those visitations, the father had told

her the child did not want to visit. For the Thanksgiving visitation, the

mother said, she traveled from her home in Stone Mountain, Georgia, to

LaGrange, Georgia, where the custody exchange was to take place, and

waited for the father to bring the child, but, she said, they never

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appeared. The mother said that she did not make the trip to LaGrange

for the scheduled custody exchange for her Christmas visitation after the

father told her that the child was not coming. The mother said that the

father's failure to comply with the Missouri court's visitation directives

had been an ongoing problem for several years.

The father testified that he knew that the court had ordered specific

visitation times for the mother, including the Thanksgiving and

Christmas visits that were missed, and that he had not forced the child

to make those visits. The child's counselor testified that it would not be

good for the child to be forced to take part in those visits.

The mother said that she had not had telephone or

videoconferencing contact with the child since July 2021. She said that

when she had attempted to reach the child through videoconferencing,

the father and the child were not online. The mother conceded that she

had not attempted to talk with the child since December 5, 2021, and that

she had not seen the child since the child's visit in summer 2021. She also

said that she had not tried to talk to anyone at the child's school about

how the child was doing, and she acknowledged that the father had not

prevented her from making such and inquiry.

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The mother acknowledged that there had been several

recommendations made that she and the child attend "reintegration

counseling." She first said that she had attended all the counseling

sessions held in Missouri, but when she was confronted on cross-

examination with specific sessions that she had not attended, the mother

said she could not recall if she had been to each session. She also said

that she was against "reintegration counseling."

Despite having held the hearing on May 9, 2022, the trial court did

not enter an order on the mother's contempt motion until December 12,

2022, three days after the mother filed what appears to be an unsolicited

proposed order in the trial court. In its ensuing "temporary order," the

trial court found the father in contempt and said that it believed that

"some changes are necessary in an attempt to address the Mother-Child

relationship." The trial court then "reverse[d] the parenting/custodial

schedule" and ordered that the child would "now primarily reside with

the Mother in accordance with the schedule that the Father has

heretofore been awarded." Accordingly, the father's visitation schedule

was the same schedule that had previously been established for the

mother. The trial court stated that the mother was "temporarily awarded

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primary physical custody" of the child "immediately following the closure

of school for the Christmas holiday period."

The day the order was entered, December 12, 2022, the father filed

a motion to alter, amend, or vacate the order and requested a hearing to

address the "immediate concerns" regarding the child's well-being. The

next day, the trial court entered an order setting a hearing on the father's

motion for June 15, 2023; however, a trial on the issue of custody

modification had already been scheduled for April 2023. The father

timely filed a petition for a writ of mandamus with this court. On January

2, 2023, this court, on the father's motion, entered an order staying the

effect of the trial court's December 12, 2022, order.

Analysis

To obtain a writ of mandamus, the father must demonstrate (1) a

clear legal right to the order sought; (2) an imperative duty upon the trial

court to perform, accompanied by a refusal to do so; (3) the lack of another

adequate remedy; and (4) the properly invoked jurisdiction of the court.

Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995).

Although the trial court's order is titled a "temporary order" and

not a pendente lite order, we note that a pendente lite custody order is

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one that is effective only during the pendency of the litigation in an

existing case and is usually replaced by the entry of a final judgment.

Hodge v. Steinwinder, 919 So. 2d 1179, 1182 (Ala. Civ. App. 2005). Here,

the "temporary order" awarding the mother custody based on the trial

court's finding that the father was in contempt will be replaced by the

judgment entered on the parties' competing requests for sole physical

custody. Because the issue of pendente lite custody would be mooted by

the entry of that judgment, mandamus is the proper vehicle for seeking

review of the December 2022 order. Ex parte L.L.H., 294 So. 3d 795, 799-

800 (Ala. Civ. App. 2019).

The father contends that the trial court erred in modifying custody

as a sanction for contempt. We agree. Alabama appellate courts have

explicitly held that visitation disputes cannot serve as the basis for the

modification of custody judgments. Cochran v. Cochran, 5 So. 3d 1220,

1228 (Ala. 2008); Ex parte Anderson, 170 So. 3d 677, 680 n.2 (Ala. Civ.

App. 2014). "[T]he appropriate remedy in such a situation is to punish

the custodial parent for contempt, not to uproot the children." Lami v.

Lami, 564 So. 2d 969, 970 (Ala. Civ. App. 1989). The only sanction the

trial court levied against the father upon finding him in contempt for his

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failure to comply with visitation provisions in the previous custody

judgments was to modify custody. Such a "punishment" is inappropriate,

and the trial court erred in entering its "temporary order" awarding the

mother sole physical custody of the child. Because the father has

demonstrated that he has a clear legal right to the relief that he seeks in

his petition, the petition is granted and the writ is due to be issued.

Because we have determined that the father is entitled to the writ

he seeks, we pretermit discussion of the other grounds that he asserts as

reasons that the writ should be issued. However, his contention that the

trial court's seven-month delay in entering the order after the hearing on

the issue of contempt, which resulted in the abrupt removal of the child

from her home with the father in the middle of the school year, was

unreasonable and not in the child's best interest bears mentioning. As

the father points out, in Ex parte Taylor, 335 So. 3d 1159 (Ala. Civ. App.

2021), this court admonished the same trial judge who is presiding over

this matter for the unreasonable delay in entering an order on motions

requesting pendente lite custody, saying that we were most "concerned

… with the harm that the delay might have caused to the children." 335

So. 3d at 1161. In Taylor, we observed that "[a] judge is expected to

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'dispose promptly of the business of the court,' … Canon 3.A.(5), Ala.

Canons of Jud. Ethics, and to 'diligently discharge his [or her]

administrative responsibilities,' Canon 3.B.(1), Ala. Canons of Jud.

Ethics." Id. at 1162. We also pointed out that the trial judge's "consistent

dereliction of duty in promptly disposing of the cases before her" had

resulted in the Court of the Judiciary taking disciplinary action against

her in 2018. Id. Nonetheless, the trial judge has persisted in her refusal

to enter timely orders, even for the sake of the lives of the children

involved. To say that this court is disappointed that the trial judge has

failed to take seriously the admonitions and pleas for her to discharge

her duties responsibly understates our concern about the behavior of the

trial judge.

For the reason discussed, we grant the father's petition for a writ of

mandamus and instruct the trial court to vacate the December 12, 2022,

"temporary order" awarding the mother sole physical custody of the child.

PETITION GRANTED; WRIT ISSUED.

Hanson, J., concurs.

Moore and Edwards, JJ., concur in the result, without opinions.

Thompson, P.J., recuses himself.

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