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REL: December 9, 2022




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 ALABAMA COURT OF CIVIL APPEALS
                               OCTOBER TERM, 2022-2023
                                _________________________

                                         CL-2022-1055
                                   _________________________

                                  Ex parte Hunter Williams

                      PETITION FOR WRIT OF MANDAMUS

                                  (In re: William P. Gowan

                                                      v.

                                         Hunter Williams)

                     (Elmore Circuit Court, DR-14-900370.04)


MOORE, Judge.

        Hunter Williams ("the mother") filed a petition for a writ of

mandamus asking this court to direct the Elmore Circuit Court ("the trial
CL-2022-1055

court") to vacate its August 31, 2022, order, in which the trial court "set

aside" part of an agreement entered into by the mother and William P.

Gowan ("the father") relating to the custody of their child.      For the

following reasons, we deny the petition.

                               Background

     The materials submitted in support of and in opposition to the

petition for a writ of mandamus indicate the following. The parties were

never married, but their relationship produced a child who was born in

2012. In a judgment entered in 2017, the trial court awarded the parties

joint legal custody, and the mother sole physical custody, of the child,

subject to the father's right to visitation. In 2020, the father filed a

petition to modify the 2017 judgment. On February 16, 2022, when the

case was called for trial, the parties announced in open court that they

had reached a settlement agreement.        The attorneys for the parties

informed the trial court of the terms of the settlement agreement, which

provided, among other things, that the parties would share joint legal

and joint physical custody of the child and that, following the end of the

2021-2022 school year, the child would reside with the mother during

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subsequent school years. After placing each party under oath, the trial

court questioned each party as to whether the attorneys had accurately

stated the agreement and questioned the guardian ad litem for the child

regarding whether she also approved of the agreement. After each party

and the guardian ad litem answered affirmatively, the trial court

concluded the proceedings and entered an order providing, in pertinent

part: "Agreement accepted by this Court. Written order of agreement to

follow."

      The parties drafted proposed orders for the trial court, but neither

party submitted a proposed order for the trial court to enter as a final

judgment in the case. On August 2, 2022, the father filed a motion

asserting that it would be in the best interests of the child to set aside

the settlement agreement based on new facts that had arisen since the

February hearing. The mother filed an objection to the motion. On

August 4, 2022, the father filed a motion requesting that the trial court

enter an order allowing the father to enroll the child in a school in Oak

Mountain. On August 5, 2022, the mother filed a motion requesting that

the trial court enforce the settlement agreement, order the father to

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return the child to her upon the commencement of the 2022-2023 school

year, and allow the child to attend school in Tallassee, where the child

was already enrolled.

     On August 11, 2022, the trial court entered an order granting the

father's motion to allow the child to enroll in an Oak Mountain school and

set the case for a hearing on the father's motion to set aside the

settlement agreement.     On August 31, 2022, the trial court, after

receiving arguments from the parties and the guardian ad litem for the

child, entered an order providing, in pertinent part: "Motion to set aside

settlement agreement is granted, insofar as it [a]ffects the present

custody and school attendance on the parties' child for the 2022-2023

school year." On October 6, 2022, the mother filed this petition for the

writ of mandamus.

                                 Issues

     The mother contends that the August 31, 2022, order should be

vacated because, she says, the parties entered into a binding agreement

in open court on February 16, 2022, and the trial court could not modify




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that agreement without the consent of both parties and without receiving

evidence to support a modification.

                           Standard of Review

            "Mandamus is an extraordinary remedy. An appellate
     court will grant a petition for a writ of mandamus only when
     '(1) the petitioner has a clear legal right to the relief sought;
     (2) the respondent has an imperative duty to perform and has
     refused to do so; (3) the petitioner has no other adequate
     remedy; and (4) this Court's jurisdiction is properly invoked.'
     Ex parte Flint Constr. Co.,
775 So. 2d 805, 808
 (Ala. 2000)
     (citing Ex parte Mercury Fin. Corp.,
715 So. 2d 196
, 198 (Ala.
     1997))."

Ex parte Amerigas,
855 So. 2d 544, 546-47
 (Ala. Civ. App. 2003).

                                Analysis

     In Porter v. Porter,
441 So. 2d 921
 (Ala. Civ. App. 1983), Lucy and

Milton Porter entered into an agreement to settle their divorce action.

The Porters' attorneys dictated the terms of the settlement agreement

into the record. The Morgan Circuit Court ordered the parties to reduce

the settlement agreement to written form to be submitted to the court for

incorporation into the final judgment of divorce. Lucy subsequently filed

a motion to enforce the settlement agreement, to which Milton responded

by claiming that the settlement agreement was not binding because Lucy

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had fraudulently induced him into the settlement agreement. The circuit

court refused to set aside the settlement agreement. On appeal, Milton

asserted that the circuit court had erred in enforcing the settlement

agreement. This court rejected that argument, relying 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,"

and on Brocato v. Brocato,
332 So. 2d 722, 724
 (Ala. Civ. App. 1976), in

which this court rejected an argument that a settlement agreement could

be repudiated "before any of the provisions were carried out."

     The mother relies heavily on Porter in arguing that the trial court

was required to enforce the settlement agreement in this case. However,

the mother overlooks a significant part of the Porter opinion, in which

this court stated: "It 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."
441 So. 2d at 924
. In this case, the trial

court did not render a judgment adopting the settlement agreement. The

trial court initially indicated in its February 16, 2022, order that it had

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"accepted" the settlement agreement, but the trial court further indicated

that it intended to "follow" up with a written judgment. Under Rule

58(b), Ala. R. Civ. P., a judgment or order becomes effective once it is

reduced to a writing signed or initialed by the judge that "indicates an

intention to adjudicate, considering the whole record, and … indicates

the substance of the adjudication." In this case, the materials submitted

by the parties indicate that the trial court requested proposed orders

from the parties before formally approving the settlement. Our 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). See Ex parte Chamblee,
899 So. 2d 244
 (Ala. 2004). Unless the

trial court enters a written order setting forth its approval of the

settlement agreement, the settlement agreement is not part of a

judgment rendered by the trial court.

     In Blasé v. Brewer,
692 N.W.2d 785
 (S.D. 2005), the unmarried

parents of a minor child reached a mediated settlement agreement

regarding custody and visitation issues relating to their child. A South

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Dakota circuit court approved the settlement agreement, but, before a

final judgment was entered, the court allowed the unwed mother to

repudiate the settlement agreement, and the case proceeded to trial. The

unwed father appealed, asserting that the settlement agreement was

binding under South Dakota law. The Supreme Court of South Dakota

disagreed, holding that, although a state statute indicated that mediated

settlement agreements generally would be binding upon approval of the

court, in child-custody cases a court can always revisit its determination

to assure that the settlement agreement serves the best interests of the

child. The South Dakota Supreme Court acknowledged that the lower

court had initially approved the settlement agreement but held that the

lower court "still owed a duty to ensure that the agreement was in the

best interest of the child before issuing a final judgment."
692 N.W.2d at 787
. The South Dakota Supreme Court further held that the lower court

could reject the settlement agreement without proof of changed

circumstances.

     In this case, Rule 47, Ala. R. App. P., provides that agreements

made in open court shall be binding; however, despite that wording, the

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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. In this case, by

granting the father's motion to set aside part of the settlement

agreement, the trial court at least impliedly determined that part of the

settlement agreement should not be enforced because it did not serve the

best interests of the child.

         The mother complains that the trial court did not receive any

evidence as to the child's best interests during the August 31, 2022,

hearing. See generally Williams v. Williams,
318 So. 3d 508
 (Ala. Civ.

App. 2020). However, 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. The materials show only

that the trial court scheduled a hearing on the father's motion to set aside

the settlement agreement and that the mother's counsel attended the

hearing, along with the father's counsel and the guardian ad litem for the

child.     The materials do not contain any written request for an

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evidentiary hearing, and, because the hearing was not on the record, we

cannot discern whether the mother orally requested an evidentiary

hearing or objected to the trial court's ruling without first conducting an

evidentiary hearing. From all that appears before this court, the mother

waived any right she may have had to an evidentiary hearing. See Rule

21(a)(1)(F), Ala. R. App. P. (requiring petitioner to include in an appendix

to the petition for the writ of mandamus all materials "essential to

understanding the matters set forth in the petition"). This court cannot

issue a writ of mandamus to compel the trial court to perform an act that

it was never requested to perform. Ex parte City of Prattville,
56 So. 3d 684, 689
 (Ala. Civ. App. 2010).

     The mother has not shown a clear legal right to an order compelling

the trial court to vacate the August 31, 2022, order. Therefore, we deny

the petition for a writ of mandamus.

     PETITION DENIED.

     Thompson, P.J., and Hanson and Fridy, JJ., concur.

     Edwards, J., concurs in the result, without opinion.




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