Ex parte Pike

Shelby Circuit Court, DR-22-900538

PETITION FOR A WRIT OF MANDAMUS

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

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,

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,

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)).

Analysis

The husband argues that the trial court erred...