Juan R. PACE, Sr.
v.
Rosanna SMITH
Page 429
Appeal
from Madison Circuit Court (DR-11-77.01), Donna Pate, Trial
Judge.
Frederick K. Meigs, Huntsville, for appellant.
Bill G.
Hall and Catherine E. Garland of Bill G. Hall & Associates,
P.C., Huntsville, for appellee.
OPINION
THOMAS,
Judge.
This is
the second time these parties have appeared before this
court. See Smith v. Pace (No. 2130075), 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
Page 430
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 fathers 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 courts
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 mothers 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 fathers
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 fathers objection to the mothers
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
fathers request for modification had been predicated on the
mothers 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 fathers 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
childrens 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 mothers 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
Page 431
to the mothers interrogatories, so the trial court granted
the mothers motion to compel his response. The mother failed
to timely answer the fathers 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 fathers 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 courts 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 fathers 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 fathers 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
courts order.
Page 432
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 mothers motion for
sanctions by April 21, 2017.
On
April 21, 2017, the father filed a response to the mothers
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 courts 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 mothers
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
mothers reply to the fathers response to the renewed motion
for sanctions, as of the date of the fathers response to the
mothers renewed motion for sanctions, the record does not
contain any objections to the mothers discovery requests.
The record also does not contain any order of the trial court
relating to the mothers 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 fathers continued failure to produce the
requested documents. On May 25, 2017, for the first time, the
father filed objections to the mothers 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 fathers 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, ...