Ex parte A.H.R. PETITION FOR WRIT OF MANDAMUS (In re: K.L.R. v. A.H.R.) (Shelby Circuit Court: DR-22-900574).

Rel: May 24, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________

CL-2024-0024
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Ex parte A.H.R.

PETITION FOR WRIT OF MANDAMUS

(In re: K.L.R. v. A.H.R.)

(Shelby Circuit Court: DR-22-900574).

HANSON, Judge.

On November 29, 2023, the Shelby Circuit Court ("the trial court")

entered an order sealing the record in this divorce case. On December 6,

2023, the trial court entered an order quashing the third-party subpoena

filed by A.H.R. ("the husband"). The husband seeks a writ of mandamus

directing the trial court to hold a hearing on the motion to seal the record,
CL-2024-0024

to enter an order with written findings supporting sealing the record, and

to enter an order sealing only certain parts of the record. The husband

also seeks a writ of mandamus ordering the trial court to rescind its order

quashing the third-party subpoena.

Background

K.L.R. ("the wife") filed a complaint for divorce on no-fault grounds

in 2022. 1 On October 21, 2022, the husband filed an amended answer to

the complaint and filed an amended counterclaim for divorce. In his

amended counterclaim, the husband alleged that the wife had committed

adultery. He requested spousal support, asserting that the wife had been

the primary wage earner during the marriage. The husband also

asserted:

"The wife has finally now admitted to the husband that
she engaged in an extramarital affair and [the] time frame of
her affair coincides with not only the filing of this action, but
with the wife's self-interested behaviors and emotionally
insolent treatment of the husband. The husband had a
suspicion that the wife was having an affair as her wardrobe
changed substantially, she refused any meaningful
communication with the husband and she became physically
unavailable to the husband. The wife, however, kept her
affair a secret from the husband and instead engaged in
antagonistic behaviors towards the husband rather than sit

1The husband did not include the wife's divorce complaint with his

mandamus petition.
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down like an adult and tell him the truth. The husband avers
that it is the wife's adultery that has led to the breakdown o[f]
this marriage.

"The husband believes that the wife has allowed her
family, specifically her mother, to interfere with the marriage
such that the wife would made [sic] marital and parental
decision[s] with her mother rather than him, as the husband
and father. His efforts to discuss this with the wife has been
unsuccessful as the wife has disregarded the husband's
opinions and prerogative as unimportant.

"The wife has been the primary wage earner during the
course of the marriage and has always provided the majority
of the financial support for the family. The wife has without
justification and explanation unilaterally withdrew [sic]
support of the husband and had disallowed the husband
access to her earnings. The husband avers that the wife
should pay him spousal support during [the] pendency of this
matter and thereafter so that the husband is able to
reestablish a home for himself and the children."

On May 13, 2023, the husband filed a subpoena to depose M.D.,

the wife's alleged paramour. On June 9, 2023, M.D. filed a motion to

quash the subpoena, indicating that he was unavailable on the August 1,

2023, date set forth in the subpoena and that his counsel had attempted

to contact the husband's counsel, who had not responded. M.D., who is a

physician, also sought a protective order to prevent the discovery of any

patient information on his telephone or other devices because the

husband sought discovery of all communications between the wife and

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M.D. On July 17, 2023, the husband filed a subpoena duces tecum

directed to Laforty Counseling Services ("Laforty"), requesting that

Laforty produce certain counseling records involving the parties. On

August 4, 2023, Laforty filed a motion to quash the subpoena duces

tecum, or, in the alternative, for a protective order allowing the trial court

an in camera inspection of the records. On October 11, 2023, the husband

filed a subpoena to compel M.D.'s deposition and he sought discovery of

all communications between the wife and M.D. .

On November 7, 2023, the husband filed a motion requesting that

the trial court rule on his pending motions. The husband asked the trial

court to rule on his July 17, 2023, subpoena duces tecum directed to

Laforty. He also asked for the trial court to rule on his October 11, 2023,

motion to compel document production and the deposition of M.D. In the

motion, the husband also stated:

"The husband is aware of the ongoing RICO [Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962
et seq.,] action filed where both [the wife's counsel] and
[counsel's law firm] are defendants and fears that if this case
is allowed to continue in its current course, he will not obtain
the justice that he and his children deserve." 2

2The husband appears to be referring to Deaton v. Stephens, Case

No. 2:23-cv-00713-RDP, a federal-court case brought against 52
defendants directly or indirectly involved in domestic-relations
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On November 9, 2023, the wife filed a motion to seal the record

pursuant to Holland v. Eads, 614 So. 2d 1012 (Ala. 1993). The wife

asserted, in pertinent part, that:

"3. Not only is this matter a wholly private family
matter, [the husband's] filings are filled with not only
excessive attacks on [the wife], but attacks on the
undersigned [law firm] and this Honorable Court.

"4. [The husband] has attempted to correlate a wholly
unrelated matter in an attempt to scare this Honorable Court
and smear the name of the undersigned and the [law firm].

"5. As such, the allegations contained in the record in
this action have the tendency to promote scandal or
defamation.

proceedings, including circuit-court judges and law firms in Jefferson
County, alleging violations of the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1962 et seq., along with conspiracy, fraud,
malpractice, invasion of privacy, false imprisonment, and abuse of
process, among other things. The gist of the complaint is that, allegedly,
the Jefferson Circuit Court Domestic Relations Division has an
established and pervasive culture of corruption that has "metastasized"
to certain judges, court appointees, attorneys, and professionals acting at
their discretion to extort, defraud, tortiously injure, and deprive citizens
of their constitutional rights for ill-gotten gains. The United States
District Court for the Northern District of Alabama, Southern Division,
dismissed the case. See Deaton v. Stephens, Case No. 2:23-cv-00713-
RDP, Sept. 19, 2023 (N.D. Ala. 2023) (not published in Federal
Supplement). The plaintiffs in that case have appealed from the
judgment of dismissal to the United States Court of Appeals for the
Eleventh Circuit.
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"6. Some allegations contained in the record involve
third persons who are not parties to the pending litigation and
could potentially cause harm to said third persons.

"7. The privacy interests of the parties, the potential for
scandal and the potential for harm to third parties outweigh
the public interest in having access to the records and exhibits
in this action."

On November 10, 2023, the husband filed an objection to the wife's

motion to seal the record, arguing, among other things, that:

"7. The wife is remiss in her statements that the
'[husband's] filings are filled with not only excessive attacks
on [the wife], but attacks on the undersigned [law firm] and
this Honorable Court.' This statement is not only completely
false but shows that the wife's counsel seeks to insulate
herself from a lawsuit in which she was a defendant. The
husband, who possesses information related to the allegations
made against counsel for the wife and the ability of those
allegations to be proven true, does not trust counsel for the
wife. This may be an inconvenient reality, but it is neither
scandalous nor defamatory, nor do his factual statements
possess a serious threat of harassment, exploitation, physical
intrusion of other particularized harm.

"8. The wife claims that [her counsel] was somehow
attacked in the husband's pleadings. The husband does not
see a single statement in his pleadings which are untrue. The
husband, an avid researcher and whose knowledge of the
family court system has increased exponentially during the
past twelve (12) months, has grave concerns regarding [the
wife's] counsel's integrity, based upon the allegations made in
the RICO suit currently pending in the Eleventh Circuit
Court of Appeals. The husband is well within his rights as a
litigant to express facts and circumstances which he believes

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to be true, particularly when he believes those allegations to
have affected the present case.

"….

"13. Further, the wife appears to seek to silence the
husband's first amendment right to free speech. The husband
has not, nor can the wife prove, discussed this case (although
it is his right to do so) in a public forum, nor has the husband
used his status or position in the conservative free press to
cause any harm to the wife. The wife very well may be
embarrassed that her adultery is contained in public records,
but her embarrassment is not supportive of an order sealing
the case from public record. The fact that her paramour is a
medical doctor who may hold himself to a certain social status
(the husband has not been yet able to depose the doctor to
determine) and/ or who also may be embarrassed by his sexual
relationship with the wife being contained in public records,
does not make it less true, nor has the wife's paramour
appeared in his own person to demonstrate harm or anything
that would rise to the level of clear and convincing evidence to
this Court of the same. The only scandal that occurred was
the hiding of the adulterous relationship from the husband."

On November 29, 2023, the trial court entered an order that

granted the wife's motion to seal the record. December 6, 2023, the

parties were before the trial court on another matter when sealing the

record was discussed at that hearing. 3 On December 6, 2023, the trial

3Any error in the trial court's holding of the hearing after the entry

of the November 29, 2023, order sealing the record may have been cured
at the December 6, 2023, hearing. As discussed, infra, the husband failed
to include a transcript of the December 6, 2023, hearing with his
mandamus petition, and this court will not presume error.
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court entered an order quashing the husband's subpoena and granting a

protective order. On December 7, 2023, the husband filed a motion to

amend the December 6, 2023, order quashing the subpoena, asserting

that the order applied to his motion to obtain records from Laforty.

On January 10, 2024, the husband filed a petition for a writ of

mandamus in this court challenging the trial court's November 29, 2023,

order sealing the record and its December 6, 2023, order quashing the

husband's subpoena. On January 19, 2024, the trial court entered an

order vacating its December 6, 2023, order quashing the subpoena,

stating that the husband's underlying motion had sought access to the

wife's medical records and that the trial court had good cause to issue an

order permitting disclosure of that information to the husband. The

January 19, 2024, order also protected the wife's medical information

from unauthorized disclosure.

Standard of Review

"A writ of mandamus is an extraordinary remedy
available only when the petitioner can demonstrate: ' "(1) a
clear legal right to the order sought; (2) an imperative duty
upon the respondent to perform, accompanied by a refusal to
do so; (3) the lack of another adequate remedy; and (4) the
properly invoked jurisdiction of the court." ' Ex parte Nall, 879
So. 2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc.,
823 So. 2d 1270, 1272 (Ala. 2001))."

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Ex parte Watters, 212 So. 3d 174, 180 (Ala. 2016).

A writ of mandamus is proper to review a trial court's order sealing

the record or documents to determine whether the trial court exceeded

its discretion. Ex parte Barze, 184 So. 3d 1012 (Ala. 2015). Likewise, a

mandamus petition may be used to review rulings on motions to quash

subpoenas from parties and nonparties. Ex parte Newby, 194 So. 3d 913

(Ala. 2015).

Analysis

The husband argues that the trial court acted outside its discretion

in sealing the record when the hearing was without notice, the order

failed to include written findings, and the order was overly broad. The

husband also argues that the trial court acted outside its discretion in

quashing the subpoena when the trial court ruled in open court that it

would allow discovery of the wife's counseling records and would allow

M.D.'s deposition, both subpoenas to be supported by protective orders.

Regarding the trial court's December 6, 2023, order involving the

subpoena, the trial court's order provided "Motion to quash defendant's

subpoena and for a protective order is hereby granted." On January 19,

2024, the trial court entered an order vacating the order to quash the

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subpoena and allowing discovery of the wife's medical records with a

protective order to prevent unauthorized disclosure. Because the trial

court's January 19, 2024, granted the husband the relief he requested,

the issue is now moot. 4 " ' "[A]s a general rule, [this court] will not decide

questions after a decision has become useless or moot." ' Underwood v.

Alabama State Bd. of Educ., 39 So. 3d 120, 127 (Ala. 2009) (quoting

Arrington v. State ex rel. Parsons, 422 So. 2d 759, 760 (Ala. 1982))." Ex

parte Slayton, [Ms. CL-2022-0973, Jan. 27, 2023] ___ So. 3d ___, ___ (Ala.

Civ. App. 2023).

The husband also seeks mandamus relief regarding the trial court's

November 29, 2023, order sealing the record. The husband argues that

the December 6, 2023, hearing was held without notice. He also argues

that his inability to obtain a transcript of the hearing prejudiced his

ability to seek mandamus relief. Specifically, the husband asserts in his

petition that

4The January 19, 2024, order also clarified that the December 6,

2023, order applied to the wife's medical records and not the husband's
request to depose M.D. Nothing in the materials filed with the husband's
mandamus petition indicates that the trial court quashed the husband's
October 11, 2023, motion to compel M.D.'s deposition. Therefore, we
pretermit any discussion of the husband's request for mandamus relief
regarding the deposition of M.D.
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"[a]lthough the husband requested a transcript of the
proceedings and attempted to contact the judge's office, for
furnishment of the court reporter's contact information, the
same was never produced and thus the husband is unable to
provide this Court with a transcript of the relevant hearing,
for its mandamus review. Without a transcript of the
underlying proceedings, the husband is left without an
effective means of seeking appellate review."

In response to the husband's assertions in his mandamus petition

that he was unable to obtain a transcript, the wife asserts that

"[t]he issues about which the Husband seeks review by
this Court culminated in a hearing on December 6, 2023.
Husband has neither provided to the Court the transcript of
this hearing, nor has he described in any detail his efforts to
obtain such transcript from the trial court. Instead, Husband
has alleged generally that he 'requested a transcript of the
proceedings and attempted to contact judge's office' but that
'same was never produced. … He has not provided any further
details that might be relevant to this Court in determining
whether it is Husband or the trial court at fault for the
incomplete record, such as when Husband made his request
for the transcript, how many requests he made, or what, if
any, additional steps that he took to obtain the records
necessary to support his Petition. Instead, the Court is left to
speculate when and how Husband attempted to secure the
December 6th transcript and, in turn, is asked to assume
either neglect or wrongdoing on behalf of the trial court
related to such issue."

In support of his argument that he has been prejudiced by the lack

of a transcript, the husband cites Sullivan v. Sullivan, 634 So. 2d 558

(Ala. Civ. App. 1994), wherein the pertinent husband, prior to trial,

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requested that a court reporter be present at the divorce hearing because

the husband was incarcerated. The trial court denied the request and a

hearing was held with no court reporter present. This court held that the

incarcerated husband was entitled to have a court reporter present

because of his pretrial request and that the failure to comply with his

request was reversible error as it left him with no effective means to

appeal. Sullivan is distinguishable from the present case because the

husband implies that there was a transcript of the hearing, that he

attempted to obtain said transcript, and that he was unable to do so. The

husband's reliance on Sullivan does not support the husband's argument.

Therefore, the husband has not shown that his ability to seek mandamus

relief has been prejudiced.

Additionally, it is well-established that the petitioner has the

responsibility of supplying this court with those parts of the record that

are essential to an understanding of the issues set forth in the mandamus

petition. Rule 21(a)(1)(F), Ala. R. App. P. Although a transcript of the

hearing would facilitate this court's review, applying well-established

law to the facts, this court will not presume error. In Ex parte Dumas,

259 So. 3d 669 (Ala. Civ. App. 2018), the father argued in his mandamus

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petition that the maternal grandmother had been awarded custody

without notice being afforded to him. This court in Dumas noted that the

custody order had indicated that a hearing had been held, at which the

father and his attorney were present. This court stated:

"No transcript of that hearing is before this court, so we
cannot determine whether the father made a general
appearance or a special appearance, whether the parties were
given an opportunity to present evidence and declined, or
otherwise what took place at that hearing. 'An appellate court
does not presume error; the appellant has the affirmative
duty of showing error.' Greer v. Greer, 624 So. 2d 1076, 1077
(Ala. Civ. App. 1993). Without a transcript indicating that the
father made a special appearance, that the parties were
denied the opportunity to present evidence, or other error, we
must presume that the trial court's hearing on November 2,
2017, cured any deficiency in notice that previously existed.
Chisolm v. Crook, 272 Ala. 192, 194, 130 So. 2d 191, 193
(1961)."

Ex parte Dumas, 259 So. 3d at 672. See also Lake Forest Prop. Owners'

Ass'n v. Coppage, 686 So. 2d 1237, 1238 (Ala. Civ. App. 1996) ("It is well

settled that when a trial court conducts a [summary judgment] hearing

and a transcript of that hearing is not present in the record, the appellate

court must conclusively presume that the trial court had adequate

evidence before it to support its findings.")

We recognize that Holland v. Eads, 614 So. 2d 1012, requires the

holding of a hearing in which the moving party will have the burden to

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present clear and convincing evidence supporting a conclusion that the

information contained in the documents sought to be sealed meets at

least one of the categories set forth in Holland. "[U]nder Holland, a trial

court considering whether to seal documents must hold a hearing at

which the parties may present arguments regarding the necessity of

sealing specific parts of the record." Ex parte Gentry, 228 So. 3d 1016,

1025 (Ala. Civ. App. 2017). "If any one of the [six] criteria is satisfied,

then the trial court may seal the record, or any part of the record, before

trial, during trial, or even after a verdict has been reached."

Holland, 614 So. 2d at 1016. The decision to seal is within the trial court's

discretion and requires the trial court to determine whether the interest

in secrecy is sufficiently strong to outweigh the public interest in

disclosure. Holland, 614 So. 2d 1012. A trial court may sua sponte order

temporarily sealing a document on a preliminary basis pending the

required hearing. Ex parte Gentry, 228 So. 3d at 1025 n.3.

As to the husband's argument that he is entitled to a hearing

because the December 6, 2023, hearing was ostensibly held without

notice and in violation of his right to due process, the husband has failed

to show that he has a clear legal right to such relief. It is undisputed by

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the parties that a hearing was held on December 6, 2023, and that sealing

the record was discussed. It is well settled that an issue may be tried by

implied consent. In Michalak v. Paterson, [Ms. CL-2022-0629, March 3,

2023] ___ So. 3d ___ (Ala. Civ. App. 2023), the father had argued that the

lack of notice that his visitation might be reduced violated his due process

rights. However, the father had made no objection at trial, and the issue

of the father's visitation was deemed to have been tried by implied

consent. In the present case, without a transcript of the December 6,

2023, hearing, we are left to speculate as to what transpired at the

hearing. See Ex parte Dumas, 259 So. 3d at 672 (" 'An appellate court

does not presume error; the appellant has the affirmative duty of showing

error.' " (quoting Greer v. Greer, 624 So. 2d 1076, 1077 (Ala. Civ. App.

1993)). Without a transcript, we must presume that the trial court's

hearing on December 6, 2023, cured any deficiency in notice.

Next, the husband argues that he is entitled to an order from the

trial court containing written findings regarding sealing the record in

compliance with Holland. As to this aspect of the husband's arguments,

we agree. Any order sealing any portion of a record must contain written

findings that the movant has shown by clear and convincing evidence

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that the information contained in the record or portion thereof sought to

be sealed meets at least one of the six categories set forth in Holland. In

sealing judicial records, a trial court has "a duty to make written

findings" that comply with Holland. Ex parte Barze, 184 So. 3d 1012,

1015 (Ala. 2015).

Last, the husband's argument that the trial court acted outside its

discretion in sealing the entire record is premature. Without a written

order in compliance with Holland, we cannot determine whether the trial

court did, in fact, act outside its discretion.

Conclusion

The husband's petition for a writ of mandamus pertaining to the

trial court's order sealing the record is granted insofar as it concerns the

trial court's failure to make explicit findings regarding whether the

record in this case should be sealed. Therefore, we direct the trial court

to enter an order in compliance with the requirements of Holland. The

petition is denied as to all other requested relief.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT

ISSUED.

Moore, P.J., and Edwards, Fridy, and Lewis, JJ., concur.

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