Mandamus Procedure - Ex parte Temporary Restraining Order


Ex parte Wendy Franks Fancher, [Ms. 2171007, Sept. 14, 2018] __ So. 3d __ (Ala. Civ. App. 2018). This decision by Judge Donaldson grants in part and denies in part the former wife’s petition for writ of mandamus seeking to vacate the Dallas Circuit Court’s ex parte temporary restraining order entered in a modification of custody proceeding filed by the former husband. Ms. *1-2. The former wife also sought a writ of mandamus directing the circuit court to dismiss the action for lack of subject matter jurisdiction due to the former husband’s failure to pay a filing fee. Ms. *2.

As to the former request, the court denied the petition for writ of mandamus, noting that “‘[i]t is the duty of this court to review the propriety of orders of judgments made in the trial court; this court cannot issue rulings on the motions pending before the trial court.’” Ms. *8, quoting Ex parte Leteto, 230 So. 3d 401, 403 (Ala. Civ. App. 2017). The court noted that the former wife had filed her petition for writ of mandamus before the circuit court had ruled on her motion to dismiss for lack of subject matter jurisdiction. Ms. *8.

The court issued the writ directing that the temporary restraining order be vacated because “the former husband did not present any facts in his motion for an ex parte temporary restraining order that showed ‘immediate and irreparable injury.’” Ms. *11.

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