Peake v. Wyatt (Ex parte Peake)
| Decision Date | 30 April 2021 |
| Docket Number | 2200302, 2200303 and 2200304 |
| Citation | 338 So.3d 171 |
| Parties | EX PARTE Taylor PEAKE (In re: Taylor Peake v. Spencer Wyatt ) Ex parte Taylor Peake (In re: Taylor Peake v. Spencer Wyatt ) Ex parte Taylor Peake (In re: Taylor Peake v. Spencer Wyatt ) |
| Court | Alabama Court of Civil Appeals |
Slate McDorman of McDorman & Walker, Birmingham, for petitioner.
Robert P. MacKenzie III, Sybil V. Newton, and Stephen W. Still, Jr., of Starnes Davis Florie, LLP, Birmingham, for respondents Laura Montgomery Lee, Deborah A. Gregory, Paige P. Yarbrough, Judith S. Crittenden, and Crittenden Partners, P.C.
This is the second set of mandamus petitions arising out of acrimonious postdivorce disputes between Taylor Peake and Spencer Wyatt, who were divorced pursuant to a judgment entered on March 22, 2019 ("the divorce judgment"), by the Domestic Relations Division of the Jefferson Circuit Court ("the trial court"). See Ex parte Wyatt Props., LLC, 337 So.3d 296 (Ala. Civ. App. 2021). Peake petitions this court for writs of mandamus directing the trial court to enter orders disqualifying Wyatt's counsel, based on a purported conflict of interest, from representing him in three matters pending before the trial court and primarily relating to the custody of the parties’ child. This court entered an order consolidating Peake's petitions. We deny Peake's petitions because she has failed to demonstrate that the trial court erred in determining that her motion to disqualify was untimely and that she thus had waived the purported conflict of interest.
A more detailed discussion of the litigation between Peake and Wyatt is discussed in Ex parte Wyatt Properties. In sum, the parties’ divorce judgment was based on a settlement agreement entered between Wyatt and Peake ("the settlement agreement"), which was incorporated into the divorce judgment and included provisions regarding the division of marital property and custody of the parties’ child, among other matters. As to the division of marital property, the settlement agreement provided, in pertinent part, that Wyatt and Peake would "continue to own and manage [Wyatt Properties, LLC,] and all holdings of said entity as 50-50 co-owners" and that Wyatt Properties would "continue to own and manage Beacon Towers, LLC and all holdings of said entity as its sole member." We note that Peake was represented by an attorney in the divorce proceedings, but that attorney is apparently not involved in the postdivorce proceedings at issue; Wyatt appeared pro se in the divorce proceedings.
According to Wyatt, and based on filings included in the materials submitted to this court in Ex parte Wyatt Properties, of which we take judicial notice, Peake began instituting a series of legal proceedings against him after August 15, 2019, when he informed her that his girlfriend, who resided in Georgia, was pregnant with a child who had been conceived before the entry of the divorce judgment; the parties allegedly had separated in January 2018. See Graham v. Graham, 326 So.3d 1046, 1048 n.1 (Ala. Civ. App. 2020) (). According to Peake, Wyatt made verbal and physical threats against her in connection with their discourse in August 2019. On August 24, 2019, Peake filed a petition for a modification of custody in the trial court, which was assigned case number DR-18-900658.01 ("the modification action"). Peake alleged in her modification petition that a material change of circumstances had occurred since the entry of the divorce judgment, specifically that Wyatt's girlfriend posed a threat to the well-being of the parties’ child and that Wyatt had been leaving the parties’ child in the girlfriend's care when he visited her. Peake sought a judgment preventing the parties’ child from being in the girlfriend's presence, awarding Peake sole legal custody and sole physical custody of the child, awarding Peake child support, and requiring that Wyatt's visitation with the child be supervised.1
After Peake commenced the modification action, Wyatt contacted Crittenden Partners, P.C., and retained three attorneys from that law firm -- Judith Crittenden, Deborah Gregory, and Paige Yarbrough -- to represent him. On August 26, 2019, Crittenden and Yarbrough filed an answer on behalf of Wyatt in the modification action, and, on the following day, they filed a "Verified Petition for Rule Nisi and Petition for Modification" in the trial court, which was assigned case number DR-18-900658.02 ("Wyatt's contempt action"). In his contempt petition, Wyatt alleged that, when Peake learned that his girlfriend was pregnant in mid-August 2019, Peake made certain threatening remarks to him and also had told the parties’ child that Wyatt did not love the child and might move away and never return. According to Wyatt, Peake was attempting to alienate the parties’ child from him and had refused to comply with the physical-custody-exchange provisions in the divorce judgment. Wyatt sought an order holding Peake in civil contempt and criminal contempt, prohibiting either party from communicating negative information to the child regarding the other party, and modifying a visitation provision regarding Wyatt's parents that was part of the settlement agreement incorporated into the divorce judgment. The instructions for service of Wyatt's contempt petition stated that it was to be served on Peake, at her home, by a personal process server; those instructions appeared immediately below Wyatt's verification and an executed signature line for Crittenden Partners, as his attorneys. The signature line for Crittenden Partners included the electronic signature of Crittenden and also included Crittenden's and Yarbrough's names under Crittenden's electronic signature.
On August 29, 2019, Peake filed in the trial court a verified motion seeking a temporary restraining order that would prevent Wyatt from leaving the State of Alabama with the parties’ child or allowing the child to have any contact with Wyatt's girlfriend. The verified motion was executed by Peake and included a certificate of service indicating that it was served on Yarbrough. Based on the pertinent certificates of service, Yarbrough was also served with Peake's amended pleadings in the modification action on September 29, 2019; December 9, 2019; and January 21, 2020, and Crittenden and Gregory, of Crittenden Partners, as "[c]ounsel for ... Wyatt," were also served with Peake's last amended pleading.
On January 7, 2020, Peake filed a "Petition for Rule Nisi" in the trial court, which was assigned case number DR-18-900658.03 ("Peake's contempt action"). Among other matters, Peake alleged that Wyatt had violated provisions of the divorce judgment regarding overnight stays involving guests of the opposite sex, regarding visitation with Wyatt's parents, and regarding the payment of certain shared extracurricular expenses for the child. In part, Peake sought an order holding Wyatt in civil contempt and criminal contempt for allegedly violating the divorce judgment and requiring Wyatt to reimburse her for the extracurricular expenses.2
On September 15, 2020, Peake amended her contempt petition to add several additional claims relating to child-custody matters and alleged violations of the divorce judgment. That amended contempt petition was verified and executed by Peake and was also executed by her domestic-relations counsel, Julia G. Williams, of Peeples Family Law, and Adrienne Moffett Powell. The certificate of service for the amended contempt petition reflects that it was served on Crittenden, Gregory, and Yarbrough, of Crittenden Partners, as "[c]ounsel for ... Wyatt."
(Emphasis added.) Peake asserted that, based on her purported disclosures to Lee, Crittenden Partners had a conflict of interest preventing it from representing Wyatt. The gist of Peake's argument in her motion to disqualify was that, even though Peake had not been a client of Crittenden Partners, the law applicable to conflicts of interest regarding a former client should be applied to her, as Crittenden Partners’ former prospective client.
In addition to her affidavit, Peake also attached correspondence regarding her attempt to have Crittenden Partners withdraw from representing Wyatt. Included as part of the attached correspondence was a letter from counsel who had filed Peake's motion to disqualify, Slate McDorman, to Lee about the alleged conflict of interest and Lee's August 26, 2020, response to that letter. In Lee's August 26, 2020, response, she stated:
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