REL: January 20, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. 

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, 

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections 

may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2022-2023

_________________________

CL-2022-1157

_________________________

Ex parte Joshua P. Pike 

PETITION FOR A WRIT OF MANDAMUS 

(In re: Kayla Laine Pike

v.

Joshua P. Pike)

(Shelby Circuit Court, DR-22-900538)

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 
CL-2022-1157

2

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 DR22-900530 ("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, 
CL-2022-1157

3

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, 

1We note that the husband's November 7, 2022, motion to alter, 

amend, or vacate the October 26, 2022, order did not toll the time for 

filing a timely petition for the writ of mandamus. See Ex parte Troutman 

Sanders, LLP, 866 So. 2d 547, 550 (Ala. 2003) (clarifying that Rule 59, 

Ala. R. Civ. P., does not apply to interlocutory orders such as orders 

denying motions to dismiss and does not toll the time for seeking 

appellate relief). Regardless, his petition for the writ of mandamus was 

timely filed within 42 days of the denial of his motion to dismiss on 

October 26, 2022. See Rule 21(a)(3), Ala. R. App. P. (indicating that a 

petition for the writ of mandamus shall be filed within a reasonable time 

and that the presumptively reasonable time for filing shall be the same 

as the time for taking an appeal); Rule 4(a)(1), Ala. R. App. P. (providing 

the time to take an appeal).
CL-2022-1157

4

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 compulsorycounterclaim 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)). 
CL-2022-1157

5

Analysis

The husband argues that the trial court erred in denying his motion 

to dismiss because, he says, the wife was required to file her complaint 

for a divorce as a compulsory counterclaim in the separation action 

pursuant to Rule 13(a), Ala. R. Civ. P. Rule 13(a) provides, in pertinent 

part:

"A pleading shall state as a counterclaim any claim which at 

the time of serving the pleading the pleader has against any 

opposing party, if it arises out of the transaction or occurrence 

that is the subject matter of the opposing party's claim and 

does not require for its adjudication the presence of third 

parties of whom the court cannot acquire jurisdiction." 

In his November 9, 2022, order, Judge Spann relied on § 30-2-40(c), 

Ala. Code 1975, and this court's opinion in Faellaci v. Faellaci, 98 So. 3d

521 (Ala. Civ. App. 2012), in denying the husband's motion to dismiss the 

divorce action. Section 30-2-40(c) provides, in pertinent part, that "[a] 

proceeding or judgment for legal separation shall not bar either party 

from later instituting an action for dissolution of the marriage." In 

Faellaci, a judgment of legal separation was entered on May 8, 2006, 

incorporating a separation agreement that had been signed by the parties

in that case. On February 28, 2008, one of the parties filed a petition to 
CL-2022-1157

6

set aside the separation agreement and a complaint for a divorce. In 

concluding that the entry of an initial divorce judgment following the 

entry of the legal-separation judgment was not a modification of the 

legal-separation judgment and that a divorce action is a separate action, 

this court stated, in pertinent part:

"A divorce action filed after the entry of a legal-separation 

judgment is distinguishable because an action in which a 

legal-separation judgment is entered is a wholly separate 

proceeding from a divorce action. Pursuant to § 30-2-40(c), 

[Ala. Code 1975,], a trial court has continuing jurisdiction to 

modify the terms of a legal-separation agreement while the 

parties are separated. However, once one party files for a 

divorce, and a new action is commenced, a trial court must 

operate pursuant to its authority under § 30-2-1, Ala. Code 

1975 (granting a circuit court the power to divorce parties 

from the bonds of matrimony upon a complaint filed by one of 

the parties)."

98 So. 3d at 534 (footnote omitted).

The husband argues in his petition before this court that Faellaci is 

distinguishable from the present case because, he says, a legalseparation judgment had already been entered in Faellaci and the case 

had been closed whereas, in the present case, the legal-separation 

complaint had not yet been adjudicated at the time the wife initiated the 

divorce action. The husband's attempted distinction fails, however, in 
CL-2022-1157

7

light of the language in § 30-2-40 itself, which provides that a party is not 

barred from instituting an action for dissolution of the marriage by either 

a "proceeding or judgment for legal separation." (Emphasis added.)

"'"'There is a presumption that every word, sentence, or 

provision [of a statute] was intended for some useful purpose, 

has some force and effect, and that some effect is to be given 

to each, and also that no superfluous words or provisions were 

used.'"' Ex parte Uniroyal Tire Co., 779 So. 2d 227, 236 (Ala.

2000) (quoting Sheffield v. State, 708 So. 2d 899, 909 (Ala.

Crim. App. 1997))."

Surtees v. VFJ Ventures, Inc., 8 So. 3d 950, 970 (Ala. Civ. App. 2008)

(quoting Ex parte Uniroyal Tire Co., 779 So. 2d 227, 236 (Ala. 2000)). 

The use of the word "or" in § 30-2-40(c) indicates that a party is not 

barred from instituting an action for dissolution of the marriage by either 

a judgment for legal separation, which was in existence at the time of the 

initiation of the divorce action in Faellaci, or by "[a] proceeding ... for 

legal separation." To limit the application of § 30-2-40(c) to those cases 

in which a separation judgment has already been entered would be to 

ignore the word "or" in that statute or to render it ineffective. See

Surtees, supra. We conclude that the use of the word "or" was not 

superfluous in § 30-2-40(c) and was intended to allow for the initiation of 

a divorce action despite the pendency of legal-separation proceedings or 
CL-2022-1157

8

the previous entry of a legal-separation judgment. See IBI Grp., 

Michigan, LLC v. Outokumpu Stainless USA, LLC, 180 So. 3d 2, 7 (Ala. 

2015) (holding, in pertinent part, that "'the word "or" is a disjunctive 

unless the context in which it was used shows clearly that the contrary 

was intended'" (emphasis omitted) (quoting Smith v. Hutson, 262 Ala. 

352, 353, 78 So. 2d 923, 924 (1955)). Our holding is bolstered by the

discussion of § 30-2-40(c) in the Comment to § 30-2-40, which indicates 

that the statement at issue "was added [to § 30-2-40(c)] so that couples 

who separate with hopes of later reconciliation would not be deterred 

from seeking a legal separation because of an unfounded fear that the 

legal separation would delay or hinder a divorce if an attempted 

reconciliation proved to be unsuccessful." Because this court has 

recognized a divorce action as being a wholly separate proceeding from a 

legal-separation action, see Faellaci, supra, and because § 30-2-40(c) 

provides for the initiation of a divorce action despite the pendency of a 

legal-separation proceeding, we conclude that the husband has failed to 

show that the wife was required to file her claim for a divorce as a 

compulsory counterclaim in the separation action.
CL-2022-1157

9

We conclude that the husband has not shown a clear legal right to 

the relief requested in his petition. Accordingly, the petition is denied.

PETITION DENIED.

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