Vеrone Marin Fehlhaber appeals from a federal district court order denying her discovery during a stay of execution of judgment, and granting appellee a protective order. Appellant contends the district court lacked jurisdiction to enter this order, or alternatively,' that the district court abused its discretion in denying discovery. We reject appellant’s contentions and affirm the district court.
This appeal arises from a course of divorce litigation between appellant and her husband, Fred Robert Fehlhaber, now deceased (decedent). The partiеs were married in 1961 and in 1967 moved to Florida. In April, 1974, appellant moved to California and instituted an action in California state court for separate maintenance 1 ; this action resulted in a $9.9 million award to appellant. Appellant then returned to Florida and brought a diversity suit in federal district court for the Southern District of Florida to enforce the California judgment. The court granted summary judgmеnt for appellant; that judgment is now on appeal to this court. 2
Upon entry of the judgment, decedent moved the district court for a stay of execution pending appeal, and requested under Fed.R.Civ.P. 62 that the court set a reduced supersedeas bond. The court held a full evidentiary hearing on decedent’s assets, and on August 1, 1979, entered an order
Appellee argues as a preliminary matter that the March 12 order is not аn appealable final order under 28 U.S.C. § 1291, and that we therefore lack jurisdiction to hear this appeal. In
United States v. McWhirter,
Appellant first argues that the district court lacked jurisdiction to deny discovery and enter a protective order. While appellant concedes that the court retains jurisdiction to enforce the stay of execution, she argues that the March 12 order was a “modification” of the stay and that the court lacks power to make such a modification.
See Draper v. Davis,
Under Fed.R.Civ.P. 69, “proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held” unless a federal statute controls. Under Florida law, “a supersedeas has the effect to suspend all further proceedings in relation to a judgment superseded.... ”
Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Co. v. Barrett,
Appellant nevertheless bases her “modification” argument on a statement in the August 1, 1979, stay order that “the stay as to discovery is hereby vacated,” and a conversation between the trial judge and attorneys for the appellee-during the bond hearing tо the effect that the trial court was “inclined” to permit appellant discovery while the appeal was in progress. 6 After reviewing the record, however, we conclude that appellant’s arguments are based on a misinterpretation of the facts surrounding the stay. The trial court had earlier entered a stay of discovery when, after the initial entry of judgment in March, 1979, decedent moved for a rehearing under Fed.R.Civ.P. 59. The phrase in the August 1, 1979, stay of execution order that “the stay as to discovery is hereby vacated” obviously referred to this earlier stay and not to the subsequent stаy of execution. Appellant, moreover, appears to have overlooked the significance of the terms of the August 1 stay order. Because the stay was conditioned upon рosting a $1.5 million supersedeas bond, appellant was free to engage in discovery until the supersedeas was posted, and in fact did so. 7 Once the stay became effective, however, “all proceedings” in aid of execution, including discovery, came to a halt. Finally, the conversation cited by appellant between the trial judge and attorneys for the decedent merely shows that at that time the trial judge was inclined to permit discovery but reserved a definite ruling on the issue. The conversation does not support a claim that the trial court somehow modified the terms of the August 1 stay order by denying discovery at a later time.
Appellant’s second argument is that even if the trial judge had jurisdiction to deny discovery, given the circumstances in this case, especially that the bond posted was only 15% of the judgment, the denial of discovery was an abuse of discretion. We disagree. Under Fed.R.Civ.P. 69(a), a judgment creditor “may obtain discovery from any person, including the judgment dеbtor, in the manner provided in these rules or in the manner provided by the practice of the state in which the district court is held.” Both federal and Florida law commit the scope of discovery to the sound discretion of the trial judge.
E. g., Citizens for a Better St. Clair County v. James,
AFFIRMED.
Notes
. Mr. Fehlhaber filed for and received a divorce in Florida during the pendency of the California suit.
. Fehlhaber v. Fehlhaber, appeal no. 79-2819. A central dispute in this case is the place of matrimonial dоmicile. We here intimate no opinion on this issue. After the death of Fred Robert Fehlhaber, his son, Robert Fred Fehlhaber, wás substituted as defendant in this subsequent appeal.
. The stay order read in relevant part:
At an evidentiary hearing as to the form and amount of security for a stay pending the appeal, the parties submitted evidence as to the financial condition of defendant. The evidence shows that defendant had a net worth of $601,-316.00 as of June 30, 1979. Defendant is also the grantor and sole beneficiary of the Fred R. Fehlhaber Trust, a revocable trust established in February, 1974, having a market value on June 30, 1979 of $1,180,336.62. Defendant has an unrestrictеd power to revoke the trust during his lifetime. The corpus of the trust includes 100 shares of Class A common stock and 4,000 shares of Class B common stock of Fehlhaber Corporation. The net worth of Fehlhabеr Corporation is in excess of $5,000,000. The balance of issued stock of Fehlhaber Corporation, consisting of 110 shares of Class A common stock, is owned by defendant’s son. Under the terms of stock purсhase agreement, the trust cannot dispose of any of its shares in Fehlhaber Corporation without first offering the stock to defendant’s son, Robert Fehlhaber.
Although defendant has substantial assets at his disposal, the evidence before the court at this time requires a determination that defendant is unable to give a supersedeas bond in the full amount of the judgment to obtain a stay. Accordingly, the Cоurt finds that defendant is entitled to a stay of the judgment in this action pending appeal. It is
ORDERED AND ADJUDGED that the defendant’s motion for stay pending appeal is GRANTED as follows:
1. The supersedeas bond shall be in the sum of Onе Million Five Hundred Thousand Dollars ($1,500,000.00).
2. Stay of the judgment shall be effective upon the Court’s approval of the supersedeas bond in said amount, conditioned for the satisfaction of the judgment.
3. Defendant Fred Robert Fehlhaber is hereby enjoined from exercising his power to revoke the Fred R. Fehlhaber Trust during the pendency of this appeal and until further order of this court.
4. Defendant Fred Robert Fehlhаber is hereby enjoined from causing, directly or indirectly, the transfer, sale or other disposition of all stock in Fehlhaber Corporation, all stock and bonds owned by the Fred R. Fehlhaber Trust and all stock which defendant owns or has an interest during the pendency of this appeal and until further order of this court. It is further
ORDERED AND ADJUDGED that the stay as to discovery is hereby vacated.
. Prior to appealing, appellant on April 13, 1981, motioned this court to compel discovery. The motion was denied.
. The Eleventh Circuit, in the en banc case
Bonner v. Prichard,
. “By Mr. Horton:
Q. You said that they would have — the right to discovеry would be available to them. Would that still hold true upon our filing the notice of appeal? * * * ”
“By the Court:
A. (In pertinent part) I am inclined to think the Court can allow, even where the record has gone forwаrd, while the appeal is in progress, ancillary proceedings to develop, short of collecting. But that is one of the questions I said I was going to answer. Now, if I can do that as a Judge, we arе going to let them make their discovery while you are appealing.
. Appellant deposed Mr. Kurras, the Sun Bank trust officer on December 10, 1979, and decedent responded to both interrogatories and a request for documents on February 8, 1980. The request for documents and interrogatories were originally propounded by appellant in May, 1979, however.
. See note 3, supra.