Ex parte T.K.
T.K. In re: R.K.
Circuit Court, DR-17-188
PETITION FOR WRIT OF MANDAMUS
THOMPSON, PRESIDING JUDGE.
("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
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; 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"). The materials before this court indicate
that the child involved in the criminal matter is 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."
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."
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."
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.
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).
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
"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 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
"'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 ...