Eaton v. Eaton

136 So. 3d 493, 2013 WL 3853153, 2013 Ala. Civ. App. LEXIS 166
CourtCourt of Civil Appeals of Alabama
DecidedJuly 26, 2013
Docket2120321
StatusPublished

This text of 136 So. 3d 493 (Eaton v. Eaton) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eaton v. Eaton, 136 So. 3d 493, 2013 WL 3853153, 2013 Ala. Civ. App. LEXIS 166 (Ala. Ct. App. 2013).

Opinion

THOMAS, Judge.

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, [495]*495which, 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 entered an order granting the mother’s attorney’s motion to withdraw and confirming that the hearing was set for the following day at 9:00 a.m. On October 10, 2012, the mother, acting pro se, appeared, and the circuit court conducted a trial.

The circuit court entered a judgment on December 7, 2012, in which it denied the mother’s motion for contempt and the father’s motion for contempt. However, it terminated the father’s periodic-alimony obligation because it determined that the mother had cohabited "with a member of the opposite sex. The mother filed a notice of appeal on January 17, 2013, seeking our review of three issues: (1) whether the circuit court erred by terminating the father’s periodic-alimony obligation, (2) whether the mother provided evidence demonstrating that the father was in arrears on his periodic-alimony obligation and, therefore, that he should have been held in contempt, and (3) whether the circuit court exceeded its discretion by con[496]*496ducting the trial after it denied the mother’s motion to continue and granted the mother’s attorney’s motion to withdraw. Because our resolution of the third issue raised by the mother is dispositive of this appeal, we address only that issue and pretermit discussion of the mother’s other issues. See Favorite Mkt. Store v. Wal-drop, 924 So.2d 719, 728 (Ala.Civ.App.2005) (stating that this court would pretermit discussion of other issues in light of dispos-itive nature of one issue).

Both the denial of a motion to continue and a grant of a motion to withdraw are matters resting within the sound discretion of the trial court, which we review for an abuse of discretion.

“ ‘ “[Continuances are not favored and ... a trial court’s denial of a motion for continuance will be upset only when a palpable or gross abuse of discretion has been shown.” Johnson Publishing Co. v. Davis, 271 Ala. 474, 496, 124 So.2d 441, 459 (1960). Scullin v. Cameron, 518 So.2d 695, 698 (Ala.1987).”

Copeland v. Samford Univ., 686 So.2d 190, 194 (Ala.1996); see also 17 C.J.S. Continuances § 49 (2011).

“Whether to permit an attorney to withdraw from representing a client is a matter resting within the sound discretion of the trial court. Thomas v. Southeast Alabama Sickle Cell Ass’n, Inc., 581 So.2d 845 (Ala.1991). In Steele v. Gill, 283 Ala. 364, 369, 217 So.2d 75, 80 (1968), this Court, acknowledging that there is ‘no hard and fast rule’ to be applied in determining whether a trial court has abused its discretion, wrote:
“ ‘[Discretion is abused whenever, in its exercise, the court has acted arbitrarily without the employment of its conscientious judgment, or has exceeded the bounds of reason in view of all the circumstances, or has so far ignored recognized rules or principles of law or practice as to [cause] substantial injustice.’ ”

Hale v. Larry Latham Auctioneers, Inc., 607 So .2d 154,155 (Ala.1992).

In Owens v. Owens,

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Bluebook (online)
136 So. 3d 493, 2013 WL 3853153, 2013 Ala. Civ. App. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eaton-v-eaton-alacivapp-2013.