ABUBAKER v. Sana Abubaker, Real Party in Interest. (2021)

ORDER DENYING PETITION FOR WRIT OF MANDAMUS

This original petition for a writ of mandamus challenges a district court order allowing real party in interest, Sana Abubaker, to relocate with the minor child.

A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station or to control an arbitrary or capricious exercise of discretion. See NRS 34.160; Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). This court has discretion as to whether to entertain a petition for extraordinary relief and will not do so when the petitioner has a plain, speedy, and adequate remedy at law. NRS 34.170; D.R. Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 474-75, 168 P.3d 731, 736-37 (2007). When bringing a petition for extraordinary writ relief, petitioner bears the burden of demonstrating that our intervention is warranted. See Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).

Having considered the petition and supporting documents filed in this matter, we are not persuaded that this court's intervention by way of extraordinary relief is warranted. Id. Notably, petitioner has filed a motion to set aside the relocation order at issue in this petition, which petitioner indicates is set for a hearing on March 8, 2021. And the trial of the underlying matter is scheduled to commence shortly thereafter, on March 15, 2021. Under these circumstances, petitioner has a speedy and adequate legal remedy available in the form of the still-pending motion to set aside the challenged relocation order. Further, should that motion be denied, once the upcoming trial is completed and a final judgment is entered, petitioner can challenge the relocation order as part of an appeal from the final judgment in the underlying divorce action. And it is well established that an appeal is generally an “adequate and speedy legal remedy” that precludes writ relief. Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558. Accordingly, for the reasons articulated above, we deny the petition. See NRAP 21(b)(1); D.R. Horton, 123 Nev. at 475, 168 P.3d at 737.

It is so ORDERED.¹

FOOTNOTES

1.   Given our resolution of this matter, we deny as moot petitioner's motion to stay the underlying proceedings.