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Ex parte T.K.

Alabama Court of Civil Appeals

December 15, 2017

Ex parte T.K.
v.
T.K. In re: R.K.

         Houston Circuit Court, DR-17-188

          PETITION FOR WRIT OF MANDAMUS

          THOMPSON, PRESIDING JUDGE.

         T.K. ("the husband") has petitioned this court for a writ of mandamus directing the Houston Circuit Court ("the trial court") to stay all discovery matters and the divorce proceedings to which he is a party, pending a resolution of criminal charges that have been filed against him.[1]

         The materials before this court indicate the following. On March 30, 2016, a Henry County grand jury indicted the husband on a charge of sexual abuse in the first degree, in violation of § 13A-6-66, Ala. Code 1975;[2] that action is hereinafter referred to as "the criminal matter." Specifically, the husband was charged with sexually abusing a child younger than 12 years of age. On May 22, 2017, R.K. ("the wife") filed a complaint for a divorce from the husband on the grounds of an irretrievable breakdown of the marriage and incompatibility of temperament ("the divorce proceeding"). The wife sought sole custody of the parties' minor child ("the child").[3] The materials before this court indicate that the child involved in the criminal matter is the parties' child.

         In the divorce proceeding, the wife propounded 37 interrogatories on the husband on August 2, 2017. On August 27, 2017, the husband filed in the trial court a motion to stay the divorce proceeding until the trial in the criminal matter was completed. At that time, the trial in the divorce proceeding was scheduled for September 13, 2017, and the trial in the criminal matter was scheduled for November 6, 2017. The husband asserted that if he were required to respond to the wife's discovery requests or to testify in the divorce proceeding before the trial in the criminal matter, his answers would "potentially impinge on [his] constitutional rights" against self-incrimination, as guaranteed by the Fifth Amendment to the United States Constitution. He also stated that the outcome of the criminal matter "would either resolve the divorce matter or would change how [he] would proceed in the divorce matter."

         The wife objected to the motion to stay the divorce proceeding, saying that the husband had not yet been ordered to pay any child support and that he was not providing any support to the child. She stated that, if the trial court deemed it necessary, it could grant a continuance but not a stay and require the husband to respond to the discovery requests but "allow [him] to assert his fifth amendment rights as needed in matters concerning discovery."

         The husband responded to the wife's objection with a motion for a protective order, stating, among other things, that, based on the nature of the issues involved, the criminal matter and the divorce proceeding were parallel and that the wife had shown that she "intends to attack issues in the [divorce] case which are related to the criminal case."

         On September 15, 2017, after a hearing on the motion to stay, the trial court entered an order requiring the husband to provide information for the calculation of child support. The trial court stated that "the husband cannot be compelled to make any statements regarding any sexual abuse by him of the minor daughter"; however, it added, nothing indicated that "responding to discovery unrelated to the criminal case will in any manner impinge upon the husband's Fifth Amendment right against self-incrimination." The trial court further stated that it had reviewed the wife's discovery requests and that they "appear[ed] to be 'standard' discovery requests in a domestic case, with no likelihood that responding by the husband will impinge upon his Fifth Amendment rights." Therefore, the trial court ordered the husband to comply with the discovery requests but indicated that he could make any good-faith objections. The trial in the divorce proceeding was also rescheduled for November 28, 2017. The husband filed the petition for a writ of mandamus on October 27, 2017, 42 days after the entry of the order at issue.

         In his petition, the husband contends that the trial court abused its discretion in requiring him to respond to the wife's discovery requests in the divorce proceeding. Specifically, the husband contends that, in refusing to stay discovery, the trial court has deprived him of his Fifth Amendment right against self-incrimination in the criminal matter.

"'Mandamus is the "proper means of review to determine whether a trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders so as to prevent an abuse of the discovery process by either party."' Ex parte Compass Bank, 686 So.2d 1135, 1137 (Ala. 1996), quoting Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala. 1993). Mandamus is an extraordinary remedy and one seeking it must 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) a lack of another remedy; and (4) properly invoked jurisdiction of the court. Id. This Court has held:
'Because discovery involves a considerable amount of discretion on the part of the trial court, the standard this Court will apply on mandamus review is whether there has been a clear showing that the trial court abused its discretion. Rule 26(c), Ala. R. Civ. P., recognizes that the right to discovery is not unlimited, and the trial court has broad powers to control the use of the process to prevent its abuse by any party.'
"Id. (citations omitted)."

Ex parte Windom, 763 So.2d 946, 948 (Ala. 2000).

         In Ex parte Rawls, 953 So.2d 374 (Ala. 2006), our supreme court addressed the issue of whether a trial court had correctly denied a husband's motion to stay divorce proceedings pending the outcome of a criminal matter pending against him. The criminal matter involved the husband's alleged violation of a protective order and his alleged stalking and harassment of the wife in that case. The Rawls court provided the framework for determinating whether a stay of divorce proceedings is necessary when criminal charges are pending against one of the parties to a divorce, writing:

"This Court stated in Ex parte Baugh, 530 So.2d 238, 241 (Ala. 1988):
"'Under the Fifth Amendment to the Constitution of the United States, "no person ... shall be compelled in any criminal case to be a witness against himself." The privilege against self-incrimination must be liberally construed in favor of the accused or the witness, Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), and is applicable not only to federal proceedings but also to state proceedings, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). "The fact that the privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection." Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979), citing with approval Lefkowitz v. Cunningham, 431 U.S. 801, 9[7] S.Ct. 2132, 53 L.Ed.2d 1 (1977); McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed.[] 158 (1924).'
"The United States Constitution, however, does not mandate that under all circumstances the civil proceedings in which the privilege against self-incrimination is asserted be stayed; whether to stay those proceedings is within the trial court's discretion.
"'While the Constitution does not require a stay of civil proceedings pending the outcome of potential criminal proceedings, a court has the discretion to postpone civil discovery when "justice requires" that it do so "to protect a party or persons from annoyance, embarrassment, oppression, or undue ...

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