Released for Publication May 8, 2014.
Appeal from Pike Circuit Court. (DR-05-53.03 and DR-05-53.04). Trial Judge: Shannon R. Clark.
For Appellant: Christopher R. East of Sasser, O'Rear & East, LLC, Montgomery.
For Appellee: Joel Lee Williams, Troy.
THOMAS, Judge. Thompson, P.J., and Pittman and Moore, JJ., concur. Donaldson, J., concurs in the result, without writing.
Cille Marie Eaton (" the mother" ) and Kurtis Weldon Eaton (" the father" ) were divorced by the Pike Circuit Court on January 4, 2006. The circuit court entered a judgment that incorporated the parties' settlement agreement and awarded physical custody of the parties' child (" the child" ) to the father. The mother was required to pay monthly child support to the father, and the father was required to pay monthly periodic alimony to the mother.
Although the child's custody is not at issue in this appeal, it is undisputed that, in July 2010, the father was hospitalized for inpatient psychiatric services and the mother received temporary custody of the child. At some point in 2010 the father resumed custody of the child. On December 7, 2011, the mother filed a motion for contempt and an affidavit in which she asserted that, with the exceptions of three partial payments, the father had failed to pay alimony since May 2010. The father answered the mother's contempt motion, denying her allegation. He filed a counterclaim in which he alleged that the mother should be held in contempt because she had failed to pay child support. Among other things not pertinent to this appeal, the father also requested the termination of his periodic-alimony obligation.
On July 13, 2012, the mother filed a motion for a final hearing, requesting a hearing date that would " allow time for discovery to take place." The mother claimed that she had not sought discovery from the father because she had hoped to reach a settlement agreement with the father without a hearing. The circuit court, on July 16, 2012, set a hearing for October 10, 2012. The father made his discovery requests on July 17, 2012. The mother submitted a set of interrogatories to the father on September 11, 2012,
which, pursuant to Rule 33(a), Ala. R. Civ. P., made the father's responses due no later than October 11, 2012 -- one day after the scheduled hearing. The mother did not seek the circuit court's permission to shorten the 30-day period to respond to the interrogatories provided in Rule 33(a).
On October 5, 2012, the mother's attorney discovered that the mother had been ill; he then filed a motion for a continuance, asserting that he had been unable to consult with the mother although he had " made numerous attempts over the past couple of weeks to contact the [mother] to schedule to meet to prepare for the final hearing." According to the motion, the mother had been hospitalized " for over a week suffering from severe pneumonia" and was still weak. In the motion the mother's attorney asserted that he had been unable to prepare the mother to testify, that discovery was pending, and that the parties were likely to reach an amicable settlement agreement before the date of the hearing if a continuance was granted. The father filed an objection to the mother's motion to continue, arguing that the parties had had ample time to prepare for the trial. The father asserted that a settlement agreement was unlikely and that " discovery should not be an issue" because the discovery requests filed by the mother were not due " until the day after the hearing." The mother responded, arguing that the father had " made it clear that he ha[d] no intention of providing discovery to the [mother] before the [hearing]." Thus, according to the mother, she would be unable to prove that the father was in arrears on his periodic-alimony obligation. The mother sought an order that, among other things, would require the father to produce the requested discovery by October 8, 2012.
Central to the issues on appeal are the events of October 8, 2012, and October 9, 2012, which we list in chronological order. On October 8, 2012, the mother's attorney filed a motion to withdraw and requested an order granting a continuance to allow the mother time to retain a new attorney; the mother's attorney asserted this ground, in addition to his original ground, asserted in the October 5, 2012, motion to continue, in which the mother's attorney had alleged that there had been a " complete breakdown of communication" between the mother and her attorney. On October 9, 2012, at 12:08 p.m., the circuit court entered an order denying the mother's motion to continue. At 12:16 p.m. the circuit court entered an order requiring the father to respond to the mother's discovery requests " on or before October 10, 2012, at 9:00 a.m." At 12:55 p.m. the circuit court entered an order denying the mother's attorney's motion to withdraw; however, without explanation, at 4:00 p.m., the circuit court ...