Divorce - Parallel Criminal and Civil Proceedings - Stay: Ex Parte T.K.


Ex parte T.K., [Ms. 2170127, Dec. 15, 2017] __ So. 3d __ (Ala. Civ. App. 2017). This unanimous decision by Presiding Judge Thompson (Pittman, Thomas, Moore, and Donaldson, JJ., concur) denies the husband’s petition for writ of mandamus seeking to vacate the Houston Circuit Court’s order refusing to stay a divorce action pending resolution of criminal charges against the husband. The criminal case involves allegations against the husband for sexual abuse of the parties’ minor child under the age of twelve. Ms. *2-3.

The court concluded the divorce and criminal cases were not parallel proceedings because “[t]he stated grounds for divorce are not interrelated with criminal matters so as to create any necessary overlap in the proceedings.” Ms. *15. The court noted that in such circumstances, a balancing test enunciated in Ex parte Ebbers, 871 So. 2d 776, 789-90 (Ala. 2003) is applied to determine whether a civil action should be stayed pending the resolution of a related criminal action or whether other safeguards may be employed to protect the criminal defendant’s Fifth Amendment privilege. Ms. *16. The court set out the following eight non-exclusive factors for the balancing test:

"1. The interest of the plaintiff in proceeding expeditiously with the civil litigation, or any particular aspect of it, and the potential prejudice to the plaintiff of a delay in the progress of that litigation.

"2. The private interest of the defendant and the burden that any particular aspect of the proceedings may impose on the defendant.

"3.The extent to which the defendant's Fifth Amendment rights are implicated/the extent to which the issues in the criminal case overlap those in the civil case.

"4. The convenience of the court in the management of its cases, and the efficient use of judicial resources.

"5. The interest of persons not parties to the civil litigation.

"6. The interest of the public in the pending civil and criminal litigation.

"7. The status of the criminal case, including whether the party moving for the stay has been indicted.

"8. The timing of the motion to stay."

Ms. *16-17, quoting Ex parte Ebbers, 871 So. 2d 776, 789-90 (Ala. 2003). The court concluded that in applying the factors, the balance weighs in favor of the wife so that a stay of discovery is not necessary. Ms. *18-19.

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