Nail v. Jeter

• Decision Date: 21 September 2012
• Docket Number: 2110323
• Parties: Barbara Jo Jeter Nail v. Barry Jeter
• Court: Alabama Court of Civil Appeals

Barbara Jo Jeter Nail v. Barry Jeter

2110323

ALABAMA COURT OF CIVIL APPEALS

SPECIAL TERM, 2012

Dated: September 21, 2012

Notice: This opinion is subject to formal revision before Publication in the advance sheets of Southern Reporter. Headers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Marshall Circuit Court

(DR-10-262.01)

THOMAS, Judge.

Barbara Jo Jeter Nail ("the mother") and Barry Jeter ("the father") were divorced on November 4, 2010. The parties have two children, Barry Max ("Max") and Emma (sometimes hereinafter referred to collectively as "the children"). Thedivorce judgment awarded the father primary physical custody of the children. On April 5, 2011, the mother filed a petition in the Marshall Circuit Court in which she sought, among other things, primary physical custody of the children, postminority educational support for Max, and a hearing on her allegation that the father had failed to comply with the terms of the divorce judgment regarding the transfer of her personal property. The father answered the mother's petition and filed a counterpetition claiming that, among other things, the mother had caused the balance of the credit-card account that he had been made responsible for in the divorce judgment to increase in the amount of $4,620. On August 17, 2011, the father filed a contempt motion alleging that the mother was influencing Max to disobey the father in an attempt to "'win' her case of custody." The mother responded to the father's contempt motion, denying the father's allegation.

On September 22, 2011, the mother filed a motion to compel the father to produce his cellular-telephone records. She asserted that she had reguested production of his cellular-telephone records on August 22, 2011, but that the father had failed to produce them. The father responded tothe mother's motion to compel, stating that his cellular-telephone records were "immaterial, irrelevant, not intended to lead to discoverable evidence, and should not be produced." He claimed that the mother intended to "misuse" or "attempt to harm" the father with the information contained in his cellular-telephone records. He requested that the trial court deny the mother's motion to compel or, in the alternative, that the trial court limit the use of the information contained in his cellular-telephone records to the specific purpose for which the mother stated that his cellular-telephone records were needed.

A trial was held on October 4, 2011, at which the trial court heard ore tenus testimony. The trial court entered its judgment on October 13, 2011, in which it transferred primary physical custody of Max to the mother, specifically "decline[d] to set any visitation schedule" for Max "due to [his] age and [his] actions[,]" declined to transfer custody of Emma to the mother or to change the mother's visitation schedule regarding Emma, directed the parties to "take the steps necessary to ensure that the [marital residence] is listed at the price suggested by the listing agent," awarded$3,000 to the father, and denied all other requested relief, including, specifically, postminority educational support for Max.

The mother filed a motion to alter, amend, or vacate the trial court's judgment on October 17, 2011, and the father filed a response and an amended response to the mother's postjudgment motion. A hearing was held on the mother's postjudgment motion on December 7, 2011, and, on December 15, 2011, the trial court entered its judgment denying her postjudgment motion.

The mother timely appealed to this court on December 28, 2011. She seeks this court's review of six issues. She contends that the trial court erred by (1) denying her motion to compel the father to produce his cellular-telephone records, (2) failing to hold the father in contempt because, she says, he refused to follow the court's orders regarding the property division, (3) failing to modify the custody of Emma, (4) modifying her child-support obligation, (5) awarding a judgment in the amount of $3,000 to the father, and (6) denying an award of postminority educational support for Max.

The Denial of the Motion to Compel the Father's Cellular-

Telephone Records

The mother's first contention is that the trial court erred because, she says, it improperly limited her discovery efforts. The mother relies on Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 310 So. 2d 210 (1975), Campbell v. Regal Typewriter Co., 341 So. 2d 120 (Ala. 1976), Ex parte Knox Kershaw, Inc., 562 So. 2d 250 (Ala. 1990), Reed v. Dyas, 28 So. 3d 6 (Ala. Civ. App. 2009), and Hood v. Hood, 76 So. 3d 824 (Ala. Civ. App. 2011), to support her argument on appeal.

'""Pursuant to Rule 26, Alabama Rules of Civil Procedure, a trial court is given authority to either limit or restrict discovery, and once the trial court chooses to so limit or restrict, its action will be liberally and broadly construed. This court will not, therefore, reverse unless it appears the trial court abused its discretion . . . ."

'"Ex parte Sullivan, Long & Hagerty, 567 So. 2d 314, 314-15 (Ala. Civ. App. 1990).'

"Ex parte HealthSouth Corp., 712 So. 2d 1086, 1088 (Ala. 1997)."

Ex parte Tuscaloosa Cnty., 825 So. 2d 729, 732 (Ala. 2001).

The record reflects that the mother filed her action against the father on April 5, 2011. On August 22, 2011, the mother requested the production of, among other documents, thefather's cellular-telephone records. Although the father produced the other requested documents, the father did not produce his cellular-telephone records. The father first stated that he was unable to print his cellular-telephone records because Max had removed the computer and printer from the father's home. On September 22, 2011, 12 days before the trial, the mother filed a motion to compel the father to produce his cellular-telephone records, and, on the same day, the father filed his response to the mother's motion to compel in which he asserted that his cellular-telephone records were irrelevant. The mother never filed a notice to serve a third-party subpoena on the father's cellular-telephone carrier. The trial court heard the arguments of counsel regarding the mother's request for discovery of the cellular-telephone records at the October 4, 2011, trial at which the mother's attorney admitted that she had failed to subpoena the father's cellular-telephone carrier for his cellular-telephone records because she wanted to "bypass ... additional charges that I would have to pay [the father's cellular-telephone carrier] or someone else." The mother's attorney suggested that the trial court order the father to download the cellular-telephonerecords "during a lunch break or ... continue the trial for the records to be obtained."

The trial court orally denied the mother's motion to compel because the mother's attorney had failed to subpoena the father's cellular-telephone carrier.

'"Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion.' Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003) (citing Home Ins. Co. v. Rice, 585 So. 2d 859, 862 (Ala. 1991))."

Grocholski v. Grocholski, 89 So. 3d 123, 128 (Ala. Civ. App. 2011). In this case, we determine that the trial court acted within its discretion because the mother's attorney failed to follow the proper procedure by filing a third-party subpoena.

Furthermore, to the extent that the exclusion of the father's cellular-telephone records was error, it was harmless error. Ala. R. App. P., Rule 45 ("Error Without Injury"); see also Ala. R. Civ. P., Rule 61 ("Harmless Error").¹ The motherproffered that she intended to prove that the father had frequently telephoned or sent harassing text messages to her, her mother, and her friends. Presumably the mother and those persons would have allowed their cellular-telephone records to be used to show the alleged incoming telephone calls and text messages from the father; thus, any error in excluding the father's cellular-telephone records was harmless.

The Refusal to Hold the Father in Contempt Regarding theProperty Division

Next the mother argues that the trial court erred by failing to hold the father in contempt because, she says, he refused to follow the trial court's orders regarding the property division. She provides citations to Reed v. Dyas, 28 So. 3d 6, 8 (Ala. Civ. App. 2009), and Hood v. Hood, 76 So. 3d 824, 831 (Ala. Civ. App. 2011), in support of this argument.

"The standard of review of a judgment of contempt is as follows:

"'"[W]hether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm."'

"Nave v. Nave, 942 So. 2d 372, 377 (Ala. Civ. App. 2005) (quoting Stack v. Stack, 646 So. 2d 51, 56 (Ala. Civ. App. 1994)). Furthermore,

"""[i]n ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.' demons v. Clemons, 627 So. 2d 431, 434 (Ala. Civ. App. 1993)."'

"Gladden v. Gladden, 942 So. 2d 362, 369 (Ala. Civ. App. 2005) (quoting Ex parte R.E.C., 899 So. 2d 272, 279 (Ala. 2004)). "

S.A.T. v. E.D., 972 So. 2d 804, 809 (Ala. Civ. App. 2007).

The father testified that the parties' divorce judgment required the parties to agree to a division of their personal property. Any remaining personal property that they could not agree upon was to be sold, and the parties were instructed to equally divide the proceeds...