Ex parte Hunter Williams, [Ms. CL-2022-1055, Dec. 9, 2022] __ So. 3d __ (Ala. Civ. App. 2022). The court (Moore, J.; Thompson, P.J., and Hanson and Fridy, JJ., concur; Edwards, J., concurs in the result) denies the mother’s mandamus petition seeking to vacate the Elmore Circuit Court’s order which “set aside” part of an agreement relating to child custody.
The mother relied on Rule 47, Ala. R. App. P., which provides, in pertinent part, that “agreements made in open court ... are binding, whether such agreements are oral or written.” The court reiterates that “‘[i]t must be recognized that though an agreement may be binding upon the parties in a divorce case, it is not binding upon the court. In rendering judgment, the court may accept or reject such an agreement, in whole or in part.’” Ms. *6, quoting Porter v. Porter, 441 So. 2d 921 (Ala. Civ. App. 1983).
Although the trial court instructed the parties to submit proposed orders, the court explains that “[o]ur supreme court has held that a trial court’s decision indicating that a motion is due to be granted and directing counsel to draft a proposed order granting the motion does not amount to the entry of a judgment or order under Rule 58(b).” Ms. *7. Despite the wording of Rule 47, Ala. R. App. P., “the trial court retained the authority to reject the settlement agreement, in whole or in part, in a subsequent judgment if it determined that such a rejection would be in the best interests of the child.” Ms. **8-9.
Finally, the court rejects the mother’s complaint that the trial court failed to conduct an evidentiary hearing regarding the best interests of the child. Citing the mother’s obligation under Rule 21(a)(1)(F), Ala. R. App. P. to include in an appendix all materials “essential to understanding the matters set forth in the petition”, the court notes “the materials submitted by the mother in support of her mandamus petition do not disclose that the mother ever argued to the trial court that it could not set aside the settlement agreement without first holding an evidentiary hearing.” Ms. *9.