Ex parte Charles Oden, Jr. PETITION FOR WRIT OF MANDAMUS

REL: December 9, 2022

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
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Ex parte Charles Oden, Jr.

PETITION FOR WRIT OF MANDAMUS

(In re: Charles Oden, Jr.

v.

Melody Oden)

(Morgan Circuit Court, DR-19-900165.03)

EDWARDS, Judge.

Charles Oden, Jr. ("the father"), and Melody Oden ("the mother")

were divorced by a judgment entered by the Morgan Circuit Court ("the

trial court") in June 2020. That judgment provided that the mother and
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the father would have joint custody of the parties' two children, that the

father's residence would be considered the older child's residence "for all

legal intents and purposes," and that the mother would have certain

specified visitation rights with the older child until such time as the

mother and the older child completed certain counseling requirements.

In March 2021, the father filed a complaint seeking to modify, among

other things, the custody provisions of the June 2020 judgment; the

mother filed a counterclaim seeking to hold the father in contempt of the

visitation provisions of the June 2020 judgment. That action was

assigned case number DR-19-900165.02. After a trial, the trial court

entered a judgment in December 2021 ("the December 2021 contempt

judgment") that, among other things, found the father to be in criminal

contempt of the visitation provisions of the June 2020 judgment and

sentenced the father to a 10-day jail sentence to be served on weekends.

The trial court suspended that sentence and ordered that the father

purge himself of the contempt by complying with several specific

provisions set out in the December 2021 contempt judgment, all of which

related in some way to the older child's visitation or relationship with the

mother.
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In January 2022, the father filed another custody-modification

complaint, and, in February 2022, the mother filed another counterclaim

seeking to hold the father in contempt for continued violations of the

visitation provisions of the June 2020 judgment and violations of the

December 2021 contempt judgment; that action was assigned case

number DR-19-900165.03. After a trial, the trial court entered a

judgment in October 2022 ("the October 2022 contempt judgment") that,

among other things, held the father in criminal contempt, sentenced him

to 10 days in jail, and lifted the suspension of the previously imposed 10-

day sentence set out in the December 2021 contempt judgment. The trial

court ordered the father to serve the two 10-day sentences concurrently

over five consecutive weekends beginning on October 14-16, 2022, and

concluding on November 11-13, 2022.

The father sought recognition by the trial court of the automatic

stay imposed on the execution of judgments under Rule 62(a), Ala. R. Civ.

P.; the trial court indicated that the stay under Rule 62(a) was not

applicable to the sentences it had imposed for criminal contempt. The

father then filed in this court a petition for the writ of mandamus,

requesting that this court direct the trial court to recognize the stay
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imposed under Rule 62(a); that petition was assigned case number CL-

2022-1094. On the father's motion, we stayed imposition of the sentences

of incarceration pending resolution of the petition for the writ of

mandamus. However, because the 30-day period during which the

automatic stay under Rule 62(a) would have operated expired before

resolution of the father's petition in case number CL-2022-1094, we

dismissed that petition on motion of the father on November 8, 2022.

On November 3, 2022, while the petition for the writ of mandamus

in case number CL-2022-1094 was pending, the father filed a

postjudgment motion directed to the October 2022 contempt judgment

and a motion requesting a stay of the sentences of incarceration pending

a ruling on the postjudgment motion as provided for in Rule 62(b), Ala.

R. Civ. P. On November 8, 2022, and November 9, 2022, the trial court,

in separate orders, set a hearing on the father's postjudgment motion for

December 14, 2022, and denied the father's motion for a stay under Rule

62(b). The father then filed the current petition for the writ of

mandamus, requesting that this court direct the trial court to enter a

stay, under Rule 62(b), of the sentences of incarceration pending the

resolution of his postjudgment motion. The father also filed a motion
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seeking a stay of the sentences of incarceration pending resolution of the

current petition for the writ of mandamus, which this court granted. We

called for expedited answers to the petition; the trial-court judge filed an

answer, but the mother declined to do so. The petition is now ripe for our

review.

" ' "Mandamus is a drastic and extraordinary writ, to be
issued only where there is (1) a clear legal right in the
petitioner 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) properly invoked
jurisdiction of the court." ' "

Ex parte A.M.P., 997 So. 2d 1008, 1014 (Ala. 2008) (quoting Ex parte

Perfection Siding, Inc., 882 So. 2d 307, 309-10 (Ala. 2003), quoting in turn

Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995)).

As the trial-court judge notes in his answer to the father's

mandamus petition, Rule 62(b) does not mandate the entry of a stay

pending resolution of the father's postjudgment motion. Instead, it

provides that a trial court has the discretion to grant a stay "on such

conditions for the security of the adverse party as are proper." Rule 62(b).

Typically, a petition for the writ of mandamus will not lie to direct a trial

court to exercise its discretion in a particular way. Ex parte Edgar, 543

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So. 2d 682, 684 (Ala. 1989). However, mandamus will lie to correct an

abuse of a trial court's discretion. Ex parte Palm Harbor Homes, Inc.,

798 So. 2d 656, 660 (Ala. 2001) ("[A] writ of mandamus is an

extraordinary remedy, which requires the petitioner to demonstrate a

clear, legal right to the relief sought, or an abuse of discretion."); Ex parte

Edgar, 543 So. 2d at 684 ("In cases involving the exercise of discretion by

an inferior court, mandamus may issue to compel the exercise of that

discretion. It may not, however, issue to control or review the exercise of

discretion except in a case of abuse.").

In Ex parte Mid-Continent Systems, Inc., 470 So. 2d 677 (Ala.

1985), our supreme court considered whether a trial court had abused its

discretion in denying a stay under Rule 62(b). After noting that the trial

court had the discretion to grant or deny a requested stay under Rule

62(b), our supreme court stated:

"The question here, then, is whether that discretion was
exercised in an arbitrary and capricious manner. Ex parte
Hartford Ins. Co., 394 So. 2d 933 (Ala. 1981). It appears from
the hearings and from the finding that the trial court was
considering a balance of the competing interests of the parties
and thus made a reasoned, as opposed to an arbitrary,
judgment denying a stay of the executions and garnishment
here."

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470 So. 2d at 681.

The trial-court judge contends that staying the sentences of

incarceration in the present case, which he concedes are sentences

imposed for criminal contempt, would permit "a party appearing before

the trial court [to] continually and routinely perform the same contempt

…, and the trial court will be without authority to enforce its orders,

protect another party, protect assets, or reunify children and parents."

However, a stay of a sentence of incarceration under Rule 62(b) merely

forestalls the execution of that particular sentence pending resolution of

a postjudgment motion. If a party continues to act in contempt of a

judgment of the trial court, that court may impose further sanctions in

any new action for contempt instituted under Rule 70A, Ala. R. Civ. P. A

trial court may also act to protect parties or assets by issuing a temporary

restraining order under Rule 65, Ala. R. Civ. P. The trial-court judge

further indicates his concern that, because the older child will reach the

age of majority on January 12, 2023, a delay in the execution of the

sentences of incarceration will prevent the trial court from restoring the

relationship between the mother and the older child. A sentence imposed

for criminal contempt serves to punish the contemnor. Rule 70A(2)(c)(ii),
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Ala. R. Civ. P.; J.S. v. L.M., 251 So. 3d 61, 66 (Ala. Civ. App. 2017). We

cannot conceive of a basis under which a sentence of incarceration for

criminal contempt imposed on one parent would serve as a method of

restoring a relationship between a child and the other parent. To the

extent that the trial-court judge has concerns that the older child's

reaching 19 years of age will somehow "moot" or obviate the sentences of

incarceration, he is incorrect. If the father is ultimately unsuccessful in

any challenge to the sentences of incarceration, he will still have to serve

those sentences, regardless of the age of the older child at the time the

challenge is resolved.

As the father correctly contends in his petition, the trial court's

refusal to stay the sentences of incarceration pending resolution of the

postjudgment motion on or after December 14, 2022, would have mooted

the father's postjudgment motion and anticipated appeal because the

father would have served the sentences by the time of the postjudgment

hearing. 1 See Davis v. Davis, 317 So. 3d 47, 52 (Ala. Civ. App. 2020)

1The father served one weekend of incarceration before he filed his
petition for the writ of mandamus in case number CL-2022-1094. If we
had not stayed the sentences of incarceration upon his filing his current
mandamus petition, the father would have had to serve the four
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(explaining that the fact that an appellant had served a sentence imposed

for contempt rendered that aspect of her appeal moot because this court

could not provide any relief); see generally Morrison v. Mullins, 275 Ala.

258, 259, 154 So. 2d 16, 18 (1963) (explaining that an appeal becomes

moot when an "event which occurred pending appeal makes a

determination of the appeal unnecessary, or renders it impossible for the

appellate court to grant effectual relief"). Our stay of the sentences of

incarceration pending the resolution of the father's petition for the writ

of mandamus has prevented such a result, but, if we were to deny the

father's petition and lift our stay, the father would have to serve his

sentences each weekend for the following four weekends, and any

potential appeal of the October 2022 contempt judgment could be mooted.

We have previously explained that an abuse of discretion occurs

when a court exercising its discretion " ' "has committed a clear or

palpable error, without the correction of which manifest injustice will be

done." ' " D.B. v. J.E.H., 984 So. 2d 459, 462 (Ala. Civ. App. 2007) (quoting

Clayton v. State, 244 Ala. 10, 12, 13 So. 2d 420, 422 (1942), quoting in

remaining weekends of incarceration on November 11-13, November 18-
20, November 25-27, and December 2-4, 2022.
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turn 16 C.J. 453). To deny the father a stay of the sentences of

incarceration would effectively deprive him of the right to seek an appeal

of the October 2022 contempt judgment. Thus, we conclude that the trial

court abused its discretion in failing to stay, under Rule 62(b), the

sentences of incarceration pending the resolution of the father's

postjudgment motion. Accordingly, we grant the father's petition for the

writ of mandamus and direct the trial court to enter a stay of the father's

sentences of incarceration pending resolution of the father's

postjudgment motion.

PETITION GRANTED; WRIT ISSUED.

Moore, Hanson, and Fridy, JJ., concur.

Thompson, P.J., concurs in the result, without opinion.

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