Ex parte Visitation Order - Mandamus - Rule 65(b), Ala. R. Civ. P. Certification


Ex parte John Lester, [Ms. 2190140, Dec. 13, 2019] __ So. 3d __ (Ala. Civ. App. 2019). The court (Edwards, J.; Thompson, P.J., and Moore, Donaldson, and Hanson, JJ., concur) issues a writ of mandamus to the Lee Circuit Court directing it to set aside its ex parte order terminating the father’s visitation. Although the father’s mandamus petition was untimely, the court considered it because the petition challenged the jurisdiction of the trial court to enter the ex parte order. The court explained, “[t]he principle allowing us to consider untimely petitions for the writ of mandamus ‘applies in cases in which a party argues that an order is void for want of due process.’” Ms. *7, quoting Ex parte Murray, 267 So. 3d 328, 332 (Ala. Civ. App. 2018).

The circuit court’s ex parte temporary emergency order terminating the father’s visitation was not supported by a certification pursuant to Rule 65(b), Ala. R. Civ. P. That rule provides:

“A temporary restraining order may be granted without written or oral notice to the adverse party or that party’s attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.”

Ms. *8. “[T]he failure to provide a Rule 65(b) certification requires that an ex parte order be set aside.” Ibid.

The court declined to issue a writ of mandamus directing the circuit court to set aside its protection-from-abuse [PFA] order. The father argued that the PFA order should be set aside because the mother had not filed a protection-from-abuse complaint. Rejecting this argument, the court held that “[t]he circuit court is a court of general jurisdiction with jurisdiction over the parties’ dispute, which arose out of their divorce judgment, as amended by the 2018 judgment. A party need not institute a separate action to secure a PFA order ....” Ms. *12.

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