Pace v. Smith

          Appeal from Madison Circuit Court (DR-11-77.01)

          THOMAS, JUDGE.

         This is the second time these parties have appeared before this court. See Smith v. Pace (No. 2130075, May 9, 2014), 187 So.3d 815 (Ala. Civ. App. 2014) (table) ("Pace").^[1]Rosanna Smith ("the mother") and Juan R. Pace, Sr. ("the father"), are the parents of two children; the mother and the father were never married. After their relationship ended in 2010, the mother sought a paternity adjudication, an award of sole legal and physical custody of the children, and an award of child support. In September 2013, after some delays resulting from the father's deployments overseas in service to our country, the Madison Circuit Court ("the trial court") entered a judgment awarding the parties joint custody ("the September 2013 custody judgment").^[2] The trial court did not order either party to pay child support. The mother appealed the September 2013 custody judgment, complaining, among other things, that the father should not have been awarded joint custody of the children because he might again be deployed for a significant period. On May 9, 2014, we affirmed the trial court's judgment without issuing an opinion. Pace.

         Meanwhile, in November 2013, the mother provided notice to the father that she intended to move to North Carolina. The father filed a complaint objecting to the mother's intended relocation in December 2013, in which he sought an order denying the mother the right to relocate and, if the mother did relocate, a modification of custody and an award of child support. The father also sought a determination that the mother was in contempt of certain provisions of the September 2013 custody judgment. The mother answered the father's complaint and filed a counterclaim, in which she sought a modification of custody based on her stated need to move to North Carolina and an award of child support.

         On February 8, 2014, the trial court entered an order "granting" the father's objection to the mother's relocation. The mother sought clarification of that order, questioning whether the order was a final judgment. The trial court entered an order on March 12, 2014, clarifying that the mother was not permitted to relocate and that, because the father's request for modification had been predicated on the mother's relocation, that issue had become moot; the trial court requested that either party notify it within seven days if he or she believed that other issues remained pending.

         On March 18, 2014, the father amended his complaint insofar as it sought to have the mother held in contempt by specifying certain dates on which the mother had denied the father his custodial rights. The mother answered the father's amended complaint and filed a new counterclaim, in which she sought to have the father held in contempt for his alleged violations of certain provisions in the September 2013 custody judgment. She also amended her claim seeking a modification of custody; her amended counterclaim contained conclusory statements that a material change of circumstances had occurred and that the mother could present evidence that an award of sole physical custody to her would be in the children's best interest. The mother continued to amend her contempt claim throughout the pendency of the action to add additional allegations that the father was not complying with various provisions of the September 2013 custody judgment. The father answered the mother's amended pleadings and also amended his complaint to add a claim for damages under the Alabama Litigation Accountability Act, codified at Ala. Code 1975, § 12-19-270 et seq.

         After this point, the parties began discovery. The father did not initially respond to the mother's interrogatories, so the trial court granted the mother's motion to compel his response. The mother failed to timely answer the father's interrogatories, as well. The trial court set and continued contempt hearings several times.

         In January 2016, the father filed a motion seeking a continuance of the pending action under the federal Servicemembers' Civil Relief Act, codified at 50 U.S.C. 3901 et seq., because he had received orders requiring him to deploy overseas beginning February 1, 2016. In that motion, the father requested that the mother be given full custodial rights over the children during the term of his deployment and that, upon his return from deployment, the joint-custody arrangement be reinstated. The trial court granted the father's motion, staying the proceedings during the full term of his deployment and awarding the mother custody of the children during the same period. In the trial court's January 12, 2016, order, it specifically stated that "the parties shall revert back to the joint legal and joint physical custody" provisions in the September 2013 custody judgment upon the termination of the father's deployment. The mother sought reconsideration of this order, arguing that she was entitled to an award of child support and that the appellate courts disfavor automatic reversionary clauses.^[3] After a hearing, the trial court deleted that part of its order allowing for the automatic resumption of the joint-custody arrangement upon the termination of the father's deployment. After the parties exchanged the necessary information, the trial court calculated pendente lite child support.

         In January 2017, after his return from deployment, the father filed a motion seeking reinstatement of the joint-custody provisions of the September 2013 custody judgment. The mother opposed that motion, but the trial court did not immediately rule. Instead, on March 9, 2017, the trial court set the matter for trial on March 20, 2017.

         The mother had served on the father a notice to take his deposition on March 7, 2017. That notice requested the production of certain documents, including tax returns, credit-card statements, and bank statements; the mother also requested information pertaining to the money the father spent on the children and documentation relating to his travel. The deposition was rescheduled for March 9, 2017, but the father failed to produce the requested documents at the deposition. Thus, the mother filed a motion on March 9, 2017, seeking to compel production of those documents and to continue the March 20, 2017, trial.

         The trial court entered an order continuing the trial to July 17, 2017. In that same order, the trial court stated:

"motion to compel filed by [the mother] is granted." No other instructions appeared in the trial court's order.

         On April 12, 2017, the mother filed a motion for sanctions. In that motion, the mother explained that she had again requested of the father the documents she had requested he produce at his March 2017 deposition and that, as of April 12, 2017, the father had not produced those documents, despite having been compelled to do so. The trial court ordered the father to respond to the mother's motion for sanctions by April 21, 2017.

         On April 21, 2017, the father filed a response to the mother's most recent amended counterclaim for contempt (as noted above, the mother frequently amended her contempt claim to add additional alleged violations of the September 2013 custody judgment). However, the father did not comply with the trial court's order to respond to the motion for sanctions. Thus, the mother filed a renewed motion for sanctions on May 3, 2017, in which she pointed out that the father had not replied to her initial motion for sanctions and that she had still not received the requested documents despite the fact that the trial court had compelled their production. The father immediately responded to the mother's renewed motion for sanctions, complaining in that response that "opposing counsel continues to file motions for discovery for items that have already been produced" and that he "continues to have depositions to ask the same questions that have no legitimate substantive bearing on any issues related to this cause." As pointed out in the mother's reply to the father's response to the renewed motion for sanctions, as of the date of the father's response to the mother's renewed motion for sanctions, the record does not contain any objections to the mother's discovery requests. The record also does not contain any order of the trial court relating to the mother's April 2017 request for discovery sanctions.

         On May 19, 2017, the mother filed a motion seeking the entry of a default judgment on her modification claim as a discovery sanction for the father's continued failure to produce the requested documents. On May 25, 2017, for the first time, the father filed objections to the mother's discovery requests. Specifically, the father objected to some requests as "overbroad" without further elaboration, to some requests as "not germane to this action," and to some requests as having been "previously provided." In addition, the father indicated that certain documents would be produced to the mother. On June 16, 2017, the mother amended her motion seeking the entry of a default judgment as a discovery sanction, explaining in the amended motion that, although the father's objection had indicated that certain requested documents would be provided, the father had still not provided those documents to the mother.

         In July 2017, the mother sought another continuance of the trial, arguing that a witness had required surgery and would be unavailable for trial and that the father had not yet provided the requested discovery. The father objected to the requested continuance, again arguing that the documents the mother complained about had been previously produced. In response to the motion to continue, the trial court referred the matter to mediation, which, ultimately, never occurred, and reset the case for January 2018.

         On January 11, 2018, the father moved for a status conference; in his motion, he asked that the parties narrow the issues to be tried before the trial court. The record does not reflect whether such conference took place, but the trial court entered an order on January 30, 2018, continuing the trial to April 24, 2018. The record is silent as to what transpired between January 30, 2018, and March 22, 2018.

         On March 22, 2018, the mother filed another motion for sanctions in which she again sought a default judgment against the father. In that motion, the mother alleged, in pertinent part:

"(11) Th[e] Court, in response to multiple motions from the mother, ordered that depositions be held in the courthouse and that the father should produce all outstanding documents.

"(12) On or about February 8, 2018, the Mother filed her 'Notice of Taking Deposition, with Requests for Production of Documents.' Said depositions were scheduled for March 22, 2018, in the courthouse.

"(13) On March 22, 2018, the father appeared for deposition, and admitted that he did not bring any pay stubs, did not bring his 2017 W-2s, did not bring any cell phone records, did not bring any of his bank statements, and in fact, would not even ...