Duncan v. Duncan

Decision Date16 April 2021
Docket Number2190594
Citation336 So.3d 666
Parties Wendelin L. DUNCAN v. Bradley J. DUNCAN
CourtAlabama Court of Civil Appeals

John Olszewski and Floyd Minor of Minor & Olszewski, L.L.C., Montgomery, for appellant.

Joseph Mitchell McGuire of McGuire & Associates, L.L.C., Montgomery, for appellee.

FRIDY, Judge.

Wendelin L. Duncan ("the wife") appeals from a postjudgment order of the Montgomery Circuit Court ("the trial court") awarding Bradley J. Duncan ("the husband") attorney's fees in the parties’ divorce action pursuant to Rule 37(a)(4), Ala. R. Civ. P., in connection with discovery disputes that arose during the course of the divorce action. We reverse the postjudgment order.

Procedural History

Litigation of the parties’ divorce action was especially contentious. Relevant information in the record indicates that, during the course of the litigation, disputes arose between the parties regarding the timeliness and thoroughness of the husband's responses to the wife's discovery requests, as well as whether the husband could take the wife's deposition before she completed his deposition. On February 23, 2017, the wife filed a motion to compel the husband to respond to the discovery she had propounded to him on December 21, 2016. She also sought sanctions against the husband. On July 26 2017, the husband filed a motion seeking to hold the wife in contempt, alleging, among other things, that the wife had refused to attend her deposition, which the husband had scheduled over her objection. The husband also claimed that the wife had "harassed" him with "a barrage of irrelevant subpoenas and discovery requests."

The trial court held a hearing on the motions on July 31, 2017. At that hearing, the wife's attorney argued that the husband had failed to provide requested documents regarding the rent and utilities he claimed to be paying. The wife's attorney told the trial court that the house at the address where the husband said he lived was boarded up and that no utilities were turned on at that address. The husband's attorney said that there were boards across the door to the house but insisted that the husband stayed there several nights a week. The house belonged to a family member of the husband's attorney. The wife's attorney explained that he was seeking corroboration of the amounts the husband was claiming he paid for rent and utilities each month but that the husband had failed to provide such documentation, which had been requested in the discovery propounded to him. In addition, the husband had been directed to bring documents to his deposition.

At the hearing, the trial court ordered the husband to provide the requested documentation. The trial court added that each party was to provide to the other any outstanding documents within 14 days. The trial court also told the husband that he had to allow the wife to finish taking his deposition before he could take the wife's deposition. The husband's attorney wanted to know which rule required that course, and the trial court advised him that it was standard practice. The trial court admonished both parties to work with each other and to provide the requested discovery.

Despite the trial court's instructions, discovery disputes continued. On August 24, 2017, the wife re-noticed the husband's deposition for August 29, 2017. The husband did not object to the date, but he did not appear for the second day of his deposition. On August 30, 2017, the wife filed a motion seeking to hold the husband in contempt and for sanctions, alleging that the husband had provided some but not all the documents requested. Additionally, the wife said, she had attempted to obtain dates from the husband's attorney regarding the husband's availability to continue with his deposition, in response to which the husband's attorney had told her to respond to his contempt motion, which had been filed before the July 31 hearing, and that he would "consider [her] request after [he got] a ruling."

On February 16, 2018, the husband filed a motion seeking to hold the wife in contempt in which, among other things, he again accused the wife of harassment because of the "barrage" of discovery requests he said that she had propounded. He did not elaborate on that accusation in the motion. A hearing was held on May 9, 2018, after which the trial court entered an order directing that all discovery was to be completed within ten days and that both parties were to "fully comply with discovery requests."

On June 15, 2018, the trial court entered an order regarding the issues taken up at the July 31, 2017, hearing. The record does not indicate why there was such a long delay between the hearing and the entry of the order. In the June 15 order, the trial court noted that, at the hearing, it had directed the husband to "fully comply" with the wife's requests for documents, including those contained in any deposition notices previously served on the husband, by no later than August 14, 2017. The trial court then ordered that the husband "shall FULLY comply with any document requests contained in any future deposition notices served on the husband." (Capitalization in original.) Once the husband had responded to the wife's requests for documents, the trial court held, the parties were to coordinate a mutually agreeable date to reconvene the husband's deposition. The trial court also sustained the wife's objection to the husband's attempt to take her deposition before she had completed his deposition. The trial court reserved the issue of award of attorney's fees and other sanctions against the husband for his refusal or failure to comply with the court's orders and the wife's discovery requests.

The trial of the action concluded on March 5, 2019. The trial court entered the judgment divorcing the parties on June 17, 2019. In that judgment, the trial court reserved jurisdiction over whether the husband would be required to pay those "legal fees" of the wife arising out of his failure to timely respond to the wife's discovery requests. On July 16, 2019, the wife timely filed a motion to alter, amend, or vacate the divorce judgment, asserting that, among other things, she should have been awarded attorney's fees. The husband did not file a motion to alter, amend, or vacate the divorce judgment. On October 15, 2019, the trial court entered an order granting in part the wife's postjudgment motion, ordering the husband to pay the wife $50,000 toward her total attorney's fees of approximately $77,000.1 The trial court said that award of fees was "separate and apart from any that the Court may or may not rule are due and payable regarding discovery."

On November 22, 2019, the trial court entered an order denying the wife's request for attorney's fees "over discovery disputes." On December 5, 2019, the husband for the first time filed a motion requesting attorney's fees and costs pursuant to Rule 37(a)(4), Ala. R. Civ. P., which permits an award of expenses arising from a motion to compel discovery under certain circumstances. On December 20, 2019, the wife filed a motion asserting that, among other things, the trial court had not had jurisdiction to enter the November 22, 2019, order. A hearing was held on the husband's and the wife's respective motions. On March 18, 2020, the trial court entered an order awarding the husband attorney's fees of $17,380 and denying the wife relief from the November 22, 2019, order. The wife filed a timely notice of appeal regarding the March 18, 2020, order awarding the husband an attorney fee.

Analysis

Our first task is to determine whether the trial court had jurisdiction to consider the husband's motion seeking attorney's fees and costs pursuant to Rule 37(a)(4), Ala. R. Civ. P., filed on December 5, 2019 -- nearly six months after the trial court had entered the divorce judgment. Rule 37(a)(4) provides:

"Award Of Expenses Of Motion. If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
"If the motion is denied, the court shall, after opportunity for hearing, require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust."

The trial court's continuing jurisdiction to consider a request for expenses under Rule 37(a)(4) after the entry of a final judgment is an issue of first impression in Alabama.

At first blush it would appear that, because the divorce action had been completed, the trial court would no longer have had jurisdiction to consider the husband's request for attorney's fees in connection with discovery issues. However, in SMM Gulf Coast, LLC v. Dade Capital Corp., 311 So.3d 736, 743 (Ala. 2020), our supreme court observed that Alabama's appellate courts have "recognized that a trial court has jurisdiction to award attorney fees and costs after entering a final judgment because such requests are collateral to the merits." See also Liberty Mut. Ins. Co. v. Greenway Enters., Inc., 23 So. 3d 52, 56 (Ala. Civ. App. 2009) (holding that a judgment regarding the collateral issues of costs and attorney's fees will support an appeal). In support of that observation, the supreme court cited Complete Cash Holdings, LLC v. Powell, 239 So. 3d 550, 555 n.6 (Ala. 2017) (noting that the appellee's request for attorney's fees and costs, which was ultimately granted, was still pending when the appellant filed its notice of appeal), Ford v. Jefferson County, 989 So. 2d 542, 545 (Ala....

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1 cases
  • Marshall v. Marshall
    • United States
    • Alabama Court of Civil Appeals
    • July 30, 2021
    ...the moving party to pay the opposing party's attorney's fees incurred in opposing the motion. Rule 37(a). See Duncan v. Duncan, 336 So.3d 666, 672 (Ala. Civ. App. 2021).The record in this case contains an order entered on November 19, 2019, in which the trial court, after considering the ar......

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