Opinion
2961308.
January 30, 1998.
Rehearing Denied March 6, 1998. Certiorari Denied June 19, 1998 Alabama Supreme Court 1971066.
Appeal from the Circuit Court, Coffee County, No. DR-95-72, Robert W. Barr, J.
Samuel M. McMillan of Inge, McMillan Coley, Mobile, for appellant.
J.E. Sawyer, Jr., Enterprise, for appellee.
On March 24, 1995, Joseph Arthur Lane filed a complaint for divorce in the Coffee County Circuit Court. The wife answered and counterclaimed, seeking a divorce on the grounds of cruelty. She requested periodic alimony, an equitable division of property, and an attorney fee. Thereafter, the wife hired and terminated the services of numerous attorneys. The trial court granted the wife numerous continuances as the result of her employing various attorneys.
On the scheduled trial date, the wife appeared, pro se, and filed in open court a motion for a continuance. The wife advised the court that she had a heart condition and that her doctor advised her to avoid stress. The trial court denied the wife's motion. Thereafter, the wife collapsed, and the wife's adult daughter from a prior marriage transported her to the hospital. The daughter returned to court with a note from the wife's treating physician, stating that the wife was under an extreme amount of stress and that any additional stress was "unadvised." The doctor asked the judge to excuse the wife from attending court and stated that if the judge had any questions, he could contact the doctor. The trial court proceeded with the trial without the benefit of the presence of counsel for the wife.
Following testimony from the husband, the trial court entered a judgment, ordering the husband to pay $500 per month periodic alimony for a period of 60 months and to name the wife as the beneficiary of one-half of his monthly military retirement benefits. The trial court awarded the wife all of her property in Germany; the funds she received as a settlement of litigation regarding her injuries received in an automobile accident; her automobile; the parties' furniture, except for a grandfather's clock and a table; and her IRA. The trial court awarded the husband his pickup truck, a Harley-Davidson motorcycle, and his IRA. The trial court ordered that the parties' mutual funds be divided equally and ordered that the marital residence be sold, with the net proceeds divided equally. The wife filed a motion to alter, amend, or set aside the judgment, which the trial court denied.
The wife appeals, contending that the trial court abused its discretion in failing to grant a continuance when the wife was in the hospital and in failing to vacate the divorce judgment.
A trial court has broad discretion in the grant or denial of a motion for a continuance, and a trial court's denial of a motion for a continuance will not be reversed unless an abuse of discretion is shown. Griffin v. American Bank, 628 So.2d 540 (Ala. 1993). However, "[i]llness of a party which prevents his attendance at the trial is generally considered ground for a continuance where it appears that his presence is indispensably necessary and there is hope for an early recovery to health." Ex parte Central Alabama Dry Goods Co., 238 Ala. 20, 22, 189 So. 56, 57 (1939) (citation omitted). Our supreme court also stated:
" 'To authorize or justify a continuance on the ground of the absence of a party, it must be made to appear that he is a competent and material witness, or that his presence is indispensable to a fair trial of the merits of the cause; and that injustice may result to the applicant in the event of a refusal of the delay and his consequent inability to be present at the trial of the cause.' "
Ex parte Central Alabama Dry Goods Co., 238 Ala. at 22, 189 So. at 57 (quoting 13 Corpus Juris 140, section 36).
In this case the husband's testimony demonstrates that the wife's presence was indispensable. The husband did not know the extent of the wife's holdings and investments in Europe. He did not know the amount of the parties' mutual funds. The husband admitted that the wife has a heart condition and that while he was stationed in Korea, he paid the wife $1,250 per month for support.
After a 20-year marriage to a career military officer, the trial court terminated the wife's rights and benefits as a spouse and a military dependent, including medical benefits for the treatment of her heart condition, without benefit of her input. The retirement benefits awarded to the wife are not available until the husband retires. The trial courts' division of property was made upon the uncertain testimony of the husband. Considering the record, we are convinced that equity requires the conclusion that the trial court abused its discretion in denying the wife's request for a continuance, particularly after the denial of the wife's motion for a new trial and after having all the evidence or lack thereof before the court.
The judgment of the trial court is reversed and this cause is remanded for a new trial.
The foregoing opinion was prepared by Retired Appellate Judge L. Charles Wright while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala. Code 1975.
REVERSED AND REMANDED WITH INSTRUCTIONS.
THOMPSON, J., concurs.
YATES, MONROE, and CRAWLEY, JJ., concur in the result.
ROBERTSON, P.J., dissents.
Based on the frequency with which the wife terminated the employment of numerous attorneys, the number of continuances granted since the divorce petition was filed in March 1995, and the court's admonitions against granting any further continuances after it set the February 1996 trial date, I believe that the trial court did not abuse its discretion in denying the wife's request for a continuance. I would, however, reverse the court's denial of the wife's postjudgment motion and remand the case for the court to determine the wife's rights and benefits as a spouse and as a military dependent.
I concur in the reversal of the judgment in this case because the trial court abused its discretion by not granting the wife's requested legal separation so that her military benefits would become vested. However, I do not agree that the trial court abused its discretion in denying the wife's motion for a continuance. I note that the trial court is authorized to impose sanctions for the wife's dilatory tactics.
In his motion to withdraw, filed on November 18, 1996, the wife's sixth attorney stated that "the Defendant is aware of her necessity to obtain other counsel or be prepared to represent herself." The certificate of service shows service on the wife. The order dated December 5, 1996, granting the motion to withdraw showed that a copy of that order was sent to the wife. By order dated January 9, 1997, the trial court set the trial for February 26. The wife's pro se response to that order was filed February 10, 1997; it states:
"RESPONSE TO COURT ORDER DATED JANUARY 9, 1997
"COMES NOW defendant, Irmgard M. Lane and files this response to the Court's Order dated January 9, 1997, and would show as follows:
"1. That I file this motion for postponement, due to lack of proper representation.
"2. Because of financial hardship, I am in the process of seeking more affordable counsel.
"3. I have just learned about the serious damage to my case.
"4. I pray this court will allow me time to make corrections.
"5. Due to serious damage to my case, I pray this court will put this case on hold, to prevent further damage to my case.
"6. I pray this court will allow me time to find an attorney, in whom I feel confident.
"Dated this 8th day of February 1997."
This response shows that the wife received a copy of the order setting the date of trial and that she requested a continuance to employ another attorney. Three days after filing this response, she wrote a letter to the husband's attorney, with a copy to the trial court, requesting a 60-day continuance in order to retain new counsel. Neither the response nor the letter mentioned her illness as a ground for continuance. The wife's written motion for continuance, submitted on the date of trial, is based on her alleged need to complete an investigation, not on her illness. The wife's past relationship with her chosen attorneys is a sufficient basis for the trial court to believe a continuance would be futile.
The doctor's letter the wife submitted to the court states that she "is currently under an extreme amount of stress." The trial court could reasonably conclude that this stress was self-inflicted and resulted from the wife's not employing an attorney or not preparing to represent herself, and also that such stress was not unusual in a contested divorce. Her doctor did not state that she was then confined to a hospital, but only that she "is currently being treated" and that "any additional stress is unadvised."