Eastman v. Eastman
| Decision Date | 02 February 1983 |
| Citation | 429 So.2d 1058 |
| Parties | James Newell EASTMAN v. Hertha Ann EASTMAN. Civ. 3495. |
| Court | Alabama Court of Civil Appeals |
James Newell Eastman, pro se.
No brief for appellee.
This is an appeal by husband, pro se, from a divorce judgment.
The hearing was ore tenus. Husband was not present nor was he represented by counsel. He was in prison at the time of the hearing and had filed a motion with the trial court to have himself brought from prison so as to be present at the hearing. His motion was denied. He filed a petition for writ of mandamus in this court. The writ was denied on the basis of Whitehead v. Bi-Petro Marketing, Inc., 356 So.2d 150 (Ala.1978). That case points out that a prisoner is not entitled in a civil case to have himself brought from the penitentiary to testify in his own behalf, and that the proper remedy is to take one's own testimony upon oral examination under Rule 30, A.R.Civ.P., upon written questions under Rule 31, A.R.Civ.P., or upon written questions under Rule 33, A.R.Civ.P. In other words, Alabama discovery and evidentiary procedures are designed to effectively provide those in such a position as husband the constitutional safeguards of notice and opportunity to be heard. Husband contends on appeal that the refusal of the court to order him to be brought from the prison for the hearing constituted a denial of due process and equal protection under the Constitutions of the United States and the State of Alabama.
The record reveals that the complaint was duly served upon the husband at the prison. He promptly filed an answer pro se. An order setting the matter for hearing more than two months thereafter was entered. Other matters were filed pro se including further answer, allegations of fact, and request for affirmative relief. During the two months between answer and hearing, no effort was made to establish discovery under any Alabama Rule of Civil Procedure. In fact, much of the complaint was admitted in the answer including the fact that the parties had lived separate and apart except for conjugal interludes since 1978.
It is the judgment of this court that under the authority of Whitehead we are bound to affirm the judgment below.
Husband contends that the court's division of property was inequitable and unjust. This is a matter of judicial discretion which will not be reversed unless...
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