Ex parte Joshua P. Pike PETITION FOR A WRIT OF MANDAMUS ( 2023 )

REL: January 20, 2023
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,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
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 Joshua P. Pike
PETITION FOR A WRIT OF MANDAMUS
(In re: Kayla Laine Pike
v.
Joshua P. Pike)
(Shelby Circuit Court, DR-22-900538)
MOORE, Judge.
Joshua P. Pike ("the husband") petitions this court for a writ of
mandamus directing the Shelby Circuit Court ("the trial court") to vacate
its order denying the husband's motion to dismiss the complaint for a
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divorce filed by Kayla Laine Pike ("the wife") against the husband and to
enter an order dismissing that complaint. We deny the petition.
Procedural History
On September 5, 2022, the husband filed in the trial court a
complaint seeking a legal separation from the wife; that complaint was
assigned to Judge Patrick Kennedy and was assigned case number DR-
22-900530 ("the separation action"). On September 9, 2022, before the
wife was served with the husband's complaint in the separation action,
the wife filed in the trial court a complaint for a divorce from the
husband; that complaint was assigned to Judge Jonathan A. Spann and
was assigned case number DR-22-900538 ("the divorce action"). On
September 13, 2022, the husband filed in the divorce action a motion to
dismiss the wife's complaint filed in the divorce action because, he
argued, her claim for a divorce was a compulsory counterclaim that
should have been asserted in the separation action. The wife filed a
response to the husband's motion, requesting that the separation action
and the divorce action be consolidated and that the divorce complaint be
treated as a counterclaim to the complaint for a legal separation. On
October 26, 2022, Judge Spann entered an order in the divorce action,
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denying the husband's motion to dismiss and directing the husband to
file an answer to the wife's complaint for a divorce within 14 days.
On November 7, 2022, the husband filed in the divorce action a
motion to alter, amend, or vacate the October 26, 2022, order. 1 He filed
in the divorce action, on November 8, 2022, a motion requesting to extend
the time for filing an answer to the complaint for a divorce, which motion,
he argued, was in the nature of a request for a stay because, he alleged,
there remained a legitimate dispute about the dismissal of the divorce
action. Judge Spann entered an order denying the husband's request for
an extension of time on November 9, 2022. On that same date, Judge
Spann entered an order denying the husband's motion to alter, amend,
1We note that the husband's November 7, 2022, motion to alter,
amend, or vacate the October 26, 2022, order did not toll the time for
filing a timely petition for the writ of mandamus. See Ex parte Troutman
Sanders, LLP, 866 So. 2d 547, 550 (Ala. 2003) (clarifying that Rule 59,
Ala. R. Civ. P., does not apply to interlocutory orders such as orders
denying motions to dismiss and does not toll the time for seeking
appellate relief). Regardless, his petition for the writ of mandamus was
timely filed within 42 days of the denial of his motion to dismiss on
October 26, 2022. See Rule 21(a)(3), Ala. R. App. P. (indicating that a
petition for the writ of mandamus shall be filed within a reasonable time
and that the presumptively reasonable time for filing shall be the same
as the time for taking an appeal); Rule 4(a)(1), Ala. R. App. P. (providing
the time to take an appeal).
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or vacate the October 26, 2022, order. Judge Spann noted in that order
that the separation action had been dismissed on November 7, 2022. The
husband acknowledges in his mandamus petition before this court that
the separation action was dismissed by Judge Kennedy sua sponte; he
asserts, however, that he filed in the separation action a motion to vacate
that dismissal and that that motion remains pending. The husband filed
his mandamus petition in this court on November 10, 2022.
Standard of Review
A petition for a writ of mandamus is the appropriate vehicle to
review an order denying a motion to dismiss based on the compulsory-
counterclaim rule. See Ex parte Hayslip, 297 So. 3d 381, 387 (Ala. 2019).
" ' "A writ of mandamus is an extraordinary remedy that
is available when a trial court has exceeded its discretion. Ex
parte Fidelity Bank, 893 So. 2d 1116, 1119 (Ala. 2004). A writ
of mandamus is 'appropriate when the petitioner can show (1)
a clear legal right 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) the
properly invoked jurisdiction of the court.' Ex parte BOC
Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001)." ' "
Ex parte Brown, 963 So. 2d 604, 606-07 (Ala. 2007) (quoting Ex parte
Rawls, 953 So. 2d 374, 377 (Ala. 2006), quoting in turn Ex parte
Antonucci, 917 So. 2d 825, 830 (Ala. 2005)).
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Analysis
The husband argues that the trial court erred in denying his motion
to dismiss because, he says, the wife was required to file her complaint
for a divorce as a compulsory counterclaim in the separation action
pursuant to Rule 13(a), Ala. R. Civ. P. Rule 13(a) provides, in pertinent
part:
"A pleading shall state as a counterclaim any claim which at
the time of serving the pleading the pleader has against any
opposing party, if it arises out of the transaction or occurrence
that is the subject matter of the opposing party's claim and
does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction."
In his November 9, 2022, order, Judge Spann relied on § 30-2-40(c),
Ala. Code 1975, and this court's opinion in Faellaci v. Faellaci, 98 So. 3d
521 (Ala. Civ. App. 2012), in denying the husband's motion to dismiss the
divorce action. Section 30-2-40(c) provides, in pertinent part, that "[a]
proceeding or judgment for legal separation shall not bar either party
from later instituting an action for dissolution of the marriage." In
Faellaci, a judgment of legal separation was entered on May 8, 2006,
incorporating a separation agreement that had been signed by the parties
in that case. On February 28, 2008, one of the parties filed a petition to
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set aside the separation agreement and a complaint for a divorce. In
concluding that the entry of an initial divorce judgment following the
entry of the legal-separation judgment was not a modification of the
legal-separation judgment and that a divorce action is a separate action,
this court stated, in pertinent part:
"A divorce action filed after the entry of a legal-separation
judgment is distinguishable because an action in which a
legal-separation judgment is entered is a wholly separate
proceeding from a divorce action. Pursuant to § 30-2-40(c),
[Ala. Code 1975,], a trial court has continuing jurisdiction to
modify the terms of a legal-separation agreement while the
parties are separated. However, once one party files for a
divorce, and a new action is commenced, a trial court must
operate pursuant to its authority under § 30-2-1, Ala. Code
1975 (granting a circuit court the power to divorce parties
from the bonds of matrimony upon a complaint filed by one of
the parties)."
98 So. 3d at 534 (footnote omitted).
The husband argues in his petition before this court that Faellaci is
distinguishable from the present case because, he says, a legal-
separation judgment had already been entered in Faellaci and the case
had been closed whereas, in the present case, the legal-separation
complaint had not yet been adjudicated at the time the wife initiated the
divorce action. The husband's attempted distinction fails, however, in
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light of the language in § 30-2-40 itself, which provides that a party is not
barred from instituting an action for dissolution of the marriage by either
a "proceeding or judgment for legal separation." (Emphasis added.)
" ' " 'There is a presumption that every word, sentence, or
provision [of a statute] was intended for some useful purpose,
has some force and effect, and that some effect is to be given
to each, and also that no superfluous words or provisions were
used.' " ' Ex parte Uniroyal Tire Co., 779 So. 2d 227, 236 (Ala.
2000) (quoting Sheffield v. State, 708 So. 2d 899, 909 (Ala.
Crim. App. 1997))."
Surtees v. VFJ Ventures, Inc., 8 So. 3d 950, 970 (Ala. Civ. App. 2008)
(quoting Ex parte Uniroyal Tire Co., 779 So. 2d 227, 236 (Ala. 2000)).
The use of the word "or" in § 30-2-40(c) indicates that a party is not
barred from instituting an action for dissolution of the marriage by either
a judgment for legal separation, which was in existence at the time of the
initiation of the divorce action in Faellaci, or by "[a] proceeding … for
legal separation." To limit the application of § 30-2-40(c) to those cases
in which a separation judgment has already been entered would be to
ignore the word "or" in that statute or to render it ineffective. See
Surtees, supra. We conclude that the use of the word "or" was not
superfluous in § 30-2-40(c) and was intended to allow for the initiation of
a divorce action despite the pendency of legal-separation proceedings or
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the previous entry of a legal-separation judgment. See IBI Grp.,
Michigan, LLC v. Outokumpu Stainless USA, LLC, 180 So. 3d 2, 7 (Ala.
2015) (holding, in pertinent part, that " 'the word "or" is a disjunctive
unless the context in which it was used shows clearly that the contrary
was intended' " (emphasis omitted) (quoting Smith v. Hutson, 262 Ala.
352, 353, 78 So. 2d 923, 924 (1955)). Our holding is bolstered by the
discussion of § 30-2-40(c) in the Comment to § 30-2-40, which indicates
that the statement at issue "was added [to § 30-2-40(c)] so that couples
who separate with hopes of later reconciliation would not be deterred
from seeking a legal separation because of an unfounded fear that the
legal separation would delay or hinder a divorce if an attempted
reconciliation proved to be unsuccessful." Because this court has
recognized a divorce action as being a wholly separate proceeding from a
legal-separation action, see Faellaci, supra, and because § 30-2-40(c)
provides for the initiation of a divorce action despite the pendency of a
legal-separation proceeding, we conclude that the husband has failed to
show that the wife was required to file her claim for a divorce as a
compulsory counterclaim in the separation action.
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We conclude that the husband has not shown a clear legal right to
the relief requested in his petition. Accordingly, the petition is denied.
PETITION DENIED.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.
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