Edmondson v. Edmondson (Ex parte Edmondson)
Decision Date | 05 May 2017 |
Docket Number | 2160432 |
Parties | EX PARTE Grady R. EDMONDSON (In re: Grady R. Edmondson v. Karen S. Edmondson) |
Court | Alabama Court of Civil Appeals |
*Note from the reporter of decisions: Judge Norton, circuit judge, Baldwin County, was appointed to preside over this case.
J. Jerry Pilgrim, Mobile, for petitioner.
David A. Simon, Fairhope, for respondent.
Grady R. Edmondson ("the husband") has filed a petition for the writ of mandamus directing the Mobile Circuit Court ("the trial court") set aside its March 8, 2017, order staying the divorce action involving the husband and Karen S. Edmondson ("the wife"). The wife has answered the husband's petition and joins in his request that the trial court be ordered to set aside the March 8, 2017, order. The facts underlying the issuance of the March 8, 2017, order are taken from the husband's petition, the wife's answer to that petition, and the materials appended to the husband's petition.
On the first day of the divorce trial, the husband was called as a witness. Counsel for the wife asked the husband whether he had had sexual relations with a woman not his wife more than 365 days before the date of trial. The husband's counsel objected, and the husband asserted his Fifth Amendment privilege against self-incrimination. The trial court stopped the trial, imposed a temporary stay on the proceedings, and asked the parties to file letter briefs explaining the parties' positions regarding the husband's right to assert his Fifth Amendment privilege against self-incrimination when questioned regarding any allegedly adulterous relationship.
In its order, the trial court set the case for a status hearing on September 26, 2017, "for the parties to provide the [trial] court with an update on any potential criminal charges against [the husband] at that time."
The husband timely filed this petition for the writ of mandamus. He seeks a writ requiring the trial court to lift the stay it imposed on the parties' divorce action. He asserts, and the wife agrees, that neither party requested or desires a stay of the divorce action.
Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006).
A trial court has the inherent power to issue a stay of proceedings pending before it. Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) ( ). Our supreme court set out some of the considerations applicable to the exercise of the power to stay in Ex parte American Family Care, Inc., 91 So.3d 682, 683 (Ala. 2012) :
Additional considerations govern a trial court's decision to stay a proceeding to protect a party's Fifth Amendment privilege against self-incrimination. See, e.g., Ex parte Rawls, 953 So.2d at 378 ; Ex parte Ebbers, 871 So.2d 776, 789 (Ala. 2003). Our supreme court has explained that, in order to determine whether a stay of a civil proceeding based on a parallel criminal proceeding to protect a party's privilege against self-incrimination is warranted, three issues must be examined:
"(1) whether the civil proceeding and the criminal proceeding are parallel, see Ex parte Weems, 711 So.2d 1011, 1013 (Ala. 1998) ; (2) whether the moving party's Fifth Amendment protection against self-incrimination will be threatened if the civil proceeding is not stayed, see Ex parte Windom, 763 So.2d 946, 950 (Ala. 2000) ; and (3) whether the requirements of the balancing test set out in Ex parte Baugh, 530 So.2d [238,] 244 [ (Ala. 1988) ], and Ex parte Ebbers, 871 So.2d 776, 789 (Ala. 2003), are met."
Ex parte Rawls, 953 So.2d at 378.
Both the husband and the wife contend first that the trial court could not stay the divorce action because neither party requested the stay. However, because a trial court has the inherent power to control litigation in its courtroom and to manage its docket, we must reject that contention. The husband's assertion of his privilege against self-incrimination alerted the trial court to the potential need for a stay of the divorce action. Thus, we cannot agree that the trial court was not permitted to consider staying the action ex mero motu.
Secondly, the parties focus their arguments on the second issue set out in Ex parte Rawls—whether the husband's privilege against self-incrimination is threatened by the divorce action. The parties agree that the question that prompted the trial court to enter its stay order pertained to alleged acts committed more than one year before the date of trial. They disagree, however, on whether the husband can be prosecuted for any act of adultery that was committed more than one year ago.
The wife contends that the husband may not assert his privilege against self-incrimination for adulterous activities occurring more than 365 days before the date of any question regarding those activities. The wife relies on Ex parte Moore, 804 So.2d 245, 246–47 (Ala. Civ. App. 2001), in which this court considered whether a husband could be compelled to answer questions regarding his alleged extramarital relationships; the opinion in Moore notes that the "inquiries [were limited] to conduct occurring ‘more than one year from the date of th[e] deposition.’ " The opinion in Moore does not contain facts indicating whether any of the alleged relationships had ended or were ongoing at the time of the deposition containing the questioning regarding his alleged extramarital relationship. Ex parte Moore, 804 So.2d at 246. We explained:
Id. at 246–47. Thus, the wife argues, the husband is not entitled to assert his privilege against self-incrimination to questions about any alleged infidelity that occurred more than one year before the date the question is posed.1
The husband, however, argues that he cannot be made to testify about any alleged infidelity, even if it occurred more than a year before the date any question is directed to him. He contends that the statute of limitations for the crime of adultery, although only one year, does not begin to run until the date of the last act of sexual intercourse between the allegedly adulterous spouse and his or her alleged paramour. That is, it appears, the husband argues that adultery is a continuing offense. See Alabama State Bar v. Chandler, 611 So.2d 1046, 1048 (Ala. 1992) ( ). The husband has provided no cogent legal argument concerning, nor any authority supporting, this proposition. See Rule 28(a)(10), Ala. R. App. P.; White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008). . As the wife correctly...
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