Opinion
CL-2023-0446 CL-2023-0454
02-23-2024
John F. Wilson v. Arlene Magoon Wilson Ex parte John F. Wilson In re: John F. Wilson v. Arlene Magoon Wilson
Appeal from Shelby Circuit Court (DR-99-112.01)
PETITION FOR WRIT OF MANDAMUS
EDWARDS, Judge.
In October 1999, the Shelby Circuit Court ("the trial court") entered a judgment divorcing John F. Wilson ("the former husband") and Arlene Magoon Wilson ("the former wife"). The divorce judgment incorporated an agreement of the parties that included the following provisions in the section of the agreement labeled "Alimony":
"13. The [former h]usband shall pay to the [former w]ife as periodic alimony the sum of Five Hundred ($500.00) Dollars per month beginning the first day of November 1999 and on the first day of each month thereafter. The [former h]usband's obligation to pay this amount shall continue for a period of 48 months, at which time the monthly alimony shall increase to the sum of One Thousand Eight Hundred Dollars ($1800.00). The [former h]usband's obligation hereunder shall terminate upon the first to occur of the following events: the [former w]ife's death, the [former h]usband's death, the [former w]ife's remarriage, the [former w]ife's commission of those acts contemplated in [§] 30-2-55, Code of Alabama (1975) or as otherwise provided by law.
"14. For so long as the [former h]usband has an alimony obligation to [the former w]ife as set out in Paragraph [13] above, the [former h]usband shall provide and maintain at his sole expense no less than One Hundred Thousand ($100,000.00) Dollars of insurance on his life naming the [former w]ife as beneficiary. The [former h]usband shall take no action to diminish or encumber the death benefits payable to the [former w]ife as provided for herein, and shall provide to the [former w]ife proof of continuing coverage at reasonable intervals. [The former h]usband's execution of this Agreement
shall constitute his consent for the [former w]ife to obtain such proof directly from the insurance company."
In December 2021, the former husband filed a petition seeking to terminate his alimony obligation and the obligation to maintain a lifeinsurance policy naming the former wife as a beneficiary. The former husband averred that he had suffered "a substantial decrease in his ability to pay alimony." The former wife answered the modification petition. The trial court conducted a trial in August 2022. The former husband filed a trial brief, which the former wife moved to strike on the basis that the trial court had not ordered the submission of trial briefs and that the former husband had not requested that he be given the right to file a trial brief; the trial court did not rule on the former wife's motion to strike. The trial court failed to issue a judgment in the months following the trial, and, on December 21, 2022, the former husband filed a motion seeking the entry of a judgment; he attached to his motion a proposed judgment terminating his obligations to the former wife. On December 22, 2022, the trial court entered the proposed judgment that had been provided to the court by the former husband.
The former wife filed a postjudgment motion in which she pointed out to the trial court that the parties had not been instructed to provide proposed judgments and that the trial court had not provided the former wife an opportunity to respond to the former husband's proposed judgment. The former wife also explicitly requested that the trial court vacate the December 22, 2022, judgment. The trial court set the former wife's postjudgment motion for a hearing to be held on January 23, 2023.
The January 23, 2023, hearing was apparently not transcribed. However, shortly after that hearing, the former wife filed a trial brief in which she outlined the testimony presented at the August 2022 trial and her position on the former husband's requests that his obligations to her be terminated. The trial court did not issue a ruling on the former wife's postjudgment motion in January 2023 or February 2023, and the former wife filed, on March 7, 2023, a "renewed" postjudgment motion in which she recounted the arguments made in her earlier postjudgment motion and pointed out that the trial court had held a hearing at which it had requested that she file a trial brief, which, she said, she had submitted. On March 21, 2023, the trial court entered the following order:
"MOTION TO VACATE OR MODIFY filed by [the former wife] is hereby GRANTED.
"Modification Order dated December 22, 2022 ... is hereby set aside. The court will review testimony, exhibits and filings in this matter and issue an amended order accordingly. This court maintains jurisdiction over this matter until further final order is entered."On May 17, 2023, the trial court entered a judgment addressing the former husband's petition to modify. In the May 2023 modification judgment, the trial court reduced the former husband's monthly alimony obligation from $1,800 to $1,000 beginning in June 2023. Although the May 2023 modification judgment did not specifically address the provision requiring the former husband to maintain a life-insurance policy naming the former wife as a beneficiary, it stated that all provisions of the 1999 judgment not modified were to remain in effect.
On June 16, 2023, the former husband filed a motion to set aside the May 2023 modification judgment in which he contended that that judgment was void because, he said, the former wife's December 2022 postjudgment motion had been denied by operation of law. The former husband specifically contended that the March 21, 2023, order on the former wife's postjudgment motion had not specifically ruled upon the postjudgment motion by amending the judgment. The former husband filed a notice of appeal from the May 2023 modification judgment on June 27, 2023. On June 28, 2023, the former husband filed a petition for the writ of mandamus in this court.
This court consolidated the appeal and the petition for the writ of mandamus ex mero motu.
On June 28, 2023, the trial court entered an order setting a hearing pursuant to Rule 60(a), Ala. R. Civ. P., at which, it stated, it intended to clarify the May 2023 modification judgment. The order specifically required the attendance of Lindsey Davis, counsel for the former wife, and Jason Overton, counsel for the former husband. Both Davis and Overton filed motions to withdraw; they both averred in their respective motions to withdraw that they had left the firms at which they had been employed and that, therefore, they could no longer represent their respective clients. The former husband filed a motion to disqualify both Davis and Overton because, subsequent to the entry of the May 2023 modification judgment, they had become employed by the same firm.
At the July 14, 2023, hearing, the following attorneys appeared: Davis; the former wife's new counsel, Christina Perry; Overton; and the former husband's new counsel, Jacquelyn Wesson. During that hearing, which the trial court stated on the record was a "Rule 60(a) hearing," the trial-court judge stated his recollection of the January 23, 2023, hearing on the former wife's postjudgment motion. According to the trial-court judge, he had informed the parties at that hearing that he had entered the December 22, 2022, judgment in error because he had mistaken the proposed judgment for a proposed judgment that he had requested in a different action. When questioned by the trial court, Davis indicated that her recollection of the substance of the January 23, 2023, hearing was the same as that of the trial-court judge. When asked the same question, Overton did not specifically state that he recalled that the trial-court judge had informed counsel that the December 2022 judgment had been entered in error, but he stated that he recalled that the trial-court judge had stated his intention to set aside the December 2022 judgment after consultation with other judges. As a result of that discussion, the trialcourt judge stated on the record: "[M]y order dated 03/21/23 was under Rule 60(a). [The entry of the December 2022 judgment] was a clerical mistake." The trial court then orally granted the motions to withdraw filed by Davis and Overton; the trial court entered written orders granting those motions on July 17, 2023.
CL-2023-0454 -- The Former Husband's Petition for the Writ of Mandamus
In his petition for the writ of mandamus, the former husband argues that the May 2023 modification judgment is void because, he says, the trial court lacked jurisdiction to enter it. Relying on Venturi v. Venturi, 233 So.3d 982 (Ala. Civ. App. 2016), the former husband specifically argues that the trial court failed to effectively rule on the former wife's postjudgment motion in the March 21, 2023, postjudgment order because, he says, the trial court's postjudgment order did not rule on the merits of the postjudgment motion. Indeed, we explained in Venturi that, "in order to toll the 90-day period for ruling on a postjudgment motion provided in Rule 59.1, [Ala. R. Civ. P.,] a trial court's order must either grant or deny that motion." 233 So.3d at 983. We further explained that
"an order that does nothing more than indicate that a trial court intends to hold a hearing on an issue raised in a postjudgment motion is not sufficient under Rule 59.1, Ala. R. Civ. P., to amount to a ruling on the motion and does not toll the running of the 90-day period to rule on the motion."Id. Moreover, as the former husband points out, Judge Donaldson, in his special concurrence in Venturi, clarified that,
"[t]o avoid confusion, a ruling by the trial court purporting to grant any requested relief in a timely filed postjudgment motion should, within the time provided by Rule 59.1, Ala. R. Civ. P., specifically alter or amend something in the judgment, specifically vacate all or a portion of the judgment, or specifically state that a new trial is ordered."Id. at 985 (Donaldson, J., concurring specially) (emphasis added).
Although the former husband is correct about the general law governing rulings on postjudgment motions, he misunderstands the import of the trial court's March 21, 2023, ruling. The trial court did not fail to rule on the merits of the former wife's postjudgment motion merely because the trial court indicated that it planned to review the evidence and enter a different modification judgment at later time. The March 21, 2023, order specifically set aside the December 2022 judgment, thus clearly granting the former wife's request that the December 2022 judgment be vacated in its entirety. Once the December 2022 judgment was vacated, the modification action remained unadjudicated. See generally Kolb v. Swann Chem. Corp., 245 Ala. 438, 440, 17 So.2d 402, 403 (1944) (stating that the effect of an order setting aside a default judgment "was to restore the parties to their respective positions" existing before the entry of the vacated judgment).
Because the March 21, 2023, postjudgment order effectively ruled on the mother's postjudgment motion by setting aside the December 2022 judgment in its entirety, the trial court retained jurisdiction over the modification action, which remained unadjudicated until the entry of the May 2023 modification judgment. Because the trial court had jurisdiction to adjudicate the modification action at the time it entered the May 2023 modification judgment, that judgment is not void. The former husband cannot demonstrate a clear, legal right to the issuance of a writ of mandamus. Ex parte Enriquez, 316 So.3d 664, 667 (Ala. Civ. App. 2020) (quoting Ex parte Adams, 514 So.2d 845, 850 (Ala. 1987)) (stating that "'[m]andamus is a drastic and extraordinary writ to be issued only where there is[, among other things,] (1) a clear legal right in the petitioner to the order sought'"). His mandamus petition is therefore denied.
CL-2023-0446 -- The Former Husband's Appeal
On appeal, the former husband argues that the May 2023 modification judgment is not supported by the evidence presented at the August 2022 trial. He challenges the trial court's refusal to terminate his alimony obligation because, he states, the evidence did not reflect that he was currently receiving income from his retirement and investment accounts. He also challenges the trial court's decision to continue his obligation to maintain a life-insurance policy to secure his alimony obligation. Finally, he argues that the trial court erred by not disqualifying the former attorneys for the former wife and the former husband, Davis and Overton, and by having them participate in the July 2023 Rule 60(a) hearing.
The former husband also makes arguments related to the validity of the May 2023 modification judgment. Because we have addressed the validity of the May 2023 modification judgment in our discussion of the former husband's petition for the writ of mandamus, we will not consider those arguments in the appeal.
"The modification of periodic alimony is a matter within the discretion of the trial court, and on appeal its judgment on that matter is presumed correct. Posey v. Posey, 634 So.2d 571 (Ala. Civ. App. 1994). This court will not reverse such a judgment unless it is not supported by the evidence or is otherwise plainly and palpably wrong. Id. The trial court may modify an award of periodic alimony if the petitioner proves that a material change of circumstances has occurred since the last award was made. Boudreaux v. Boudreaux, 550 So.2d 1030 (Ala. Civ. App. 1989). The trial court may consider several factors, including the earning capacity of each spouse, the recipient's needs and the payor's ability to meet those needs, and the estate of each spouse. Posey, supra. Even if a
change of circumstances is shown, the trial court is not required to grant the modification. Mullins v. Mullins, 475 So.2d 578 (Ala. Civ. App. 1985)."Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala. Civ. App. 1995).
We recognize that, pursuant to Ala. Code 1975, § 30-2-58, "[Ala. Code 1975, §§] 30-2-56 and 30-2-57 govern actions for divorce, legal separation, or annulment filed on or after January 1, 2018." However, § 30-2-58 also provides that "[t]he law in effect before January 1, 2018, shall continue to govern any action concerning alimony in any case concerning divorce, legal separation, or annulment that was filed before January 1, 2018." Thus, in resolving this appeal, we reply upon pre-2018 caselaw relating to the modification of alimony.
The former husband testified that, at the time of the modification trial, he was 70 years old and that he had retired in December 2021 from his employment as a nurse anesthetist, at which he had earned approximately $250,000 in 2021. When asked about a January 2022 deposit to his bank account, the former husband explained that he had been paid one month in arrears and that the January 2022 deposit was for his final month of employment. The former husband admitted that he had paid off some credit-card debt in anticipation of his retirement, including making a payment of $12,860 on January 19, 2022.
The former husband testified that his monthly income of $5,164.28 includes Social Security benefits in the amount of $3,838.20 and his military-retirement benefits in the amount of $1,326.08. He further testified that his monthly expenses, including his existing alimony obligation of $1,800, totaled $8,886. The exhibit outlining those monthly expenses includes $762 for his current wife's automobile payment, $86 for his current wife's insurance, $1,500 in "federal and state taxes," and $4,000 in credit-card payments that the exhibit indicates are for "food, utilities, internet, phone, gasoline."
The former husband has a total of five investment or retirement accounts, three of which appear to be jointly held with his current wife. The total combined value of those accounts, based on the various account statements contained in the record, appears to exceed $800,000. The former husband testified that he and his current wife had "worked very hard our whole marriage to build up as much savings as we could knowing that someday that I would retire." An exhibit in the record indicates that, in January 2022, the former husband transferred $20,000 into his bank account from an investment account containing a balance of $153,545.03 as of January 31, 2022. He explained that he had transferred that money from his investment account into his bank account because he knew that he would need funds from which to pay the former wife alimony during the pendency of the alimony-modification action.
The dates of the account statements varied. One statement was dated December 2021, one was dated December 2022, two were dated January 2022, and one was dated February 2022.
The former wife's counsel questioned the former husband about trips that he and his current wife had taken in recent years. According to the former husband, his current wife had won a trip to Hawaii and money as a contestant on a television game show in 2020. He said that they had delayed taking the trip to Hawaii until 2021 because of the COVID-19 pandemic and that they had used the money that she had won to take a cruise to Scandinavian countries in 2021. The former husband also said that he had taken a trip to the Florida Keys to reunite with some of his military friends. He further admitted that he and his current wife had taken a few trips each year to Destin, Florida, to visit his current wife's daughter and grandchildren.
The former husband testified that paying the former wife $1,800 per month in alimony after the decrease in his income upon his retirement would be a "burden." According to the former husband, he was unable to pay his monthly expenses on his retirement income. He said that continuing to pay the $1,800 in alimony would be "possible if we used our retirement funds to pay it."
The former wife testified that she had not been employed when the parties divorced in 1999. She said that, after the divorce, she had pursued a master's degree so that she could become "highly qualified" and secure a position as a second-grade teacher. The former wife explained that she had had to retire from that position earlier than she had expected due to suffering from diabetic retinopathy; she testified at the August 2022 trial that she had retired "about a year ago." Although the former wife said that, as of the date of the trial in August 2022, she was able to drive, she indicated that her condition might worsen and restrict her ability to drive. The former wife also testified that the house in which she was living was old and would likely require expensive repairs in the near future.
The former wife testified that her income had been $102,935 in 2021 but that her current monthly income included $1,000 in Social Security benefits, $1,800 in retirement benefits, $1,400 in military-retirement benefits that had been awarded to her as a property settlement in the 1999 divorce judgment, and $1,800 in alimony. Thus, the former wife's monthly income totaled $6,000. She testified that her monthly expenses totaled $4,856. When asked if she could meet those expenses without alimony, she said that she could not.
Regarding his request for a termination of his alimony obligation, the former husband contends that the evidence presented to the trial court did not establish that he had income sufficient to pay the former wife alimony. He also argues that the former wife, who earned over $100,000 in income in 2021, did not establish a need for continued alimony. We disagree.
The former husband correctly points out that periodic alimony is to be paid from the current income of the payor spouse. See Smith v. Smith, 866 So.2d 588 (Ala. Civ. App. 2003). Although the former husband contends that he had not used his retirement and investment accounts as a source of income to pay his living expenses, the trial court was not required to believe that the former husband, who testified that his expenses well exceeded his retirement income, did not plan to utilize his retirement and investment accounts to fund his living expenses, especially when he testified that he and his current wife had planned for retirement by amassing well-funded retirement and investment accounts. In addition, the former husband testified that he had transferred $20,000 out of one of those accounts so that he could pay the former wife alimony during the pendency of the modification action, indicating that the former husband had access to funds with which to pay his obligations to the former wife and his expenses. As we explained in Yohey v. Yohey, 890 So.2d 160, 167 (Ala. Civ. App. 2004), a trial court may conclude that a retired spouse who has expenses exceeding his monthly income is currently utilizing his retirement accounts to meet his living expenses even if the retired spouse does not admit that fact. See also Stamm v. Stamm, 922 So.2d 920, 923 (Ala. Civ. App. 2004) (stating that "this court has held that a party's retirement benefits, once they are part of the party's current income, may be considered as income from which to pay periodic alimony").
We also reject the former husband's argument that the former wife did not establish that she still had a need for alimony. The former wife's testimony indicated that she still had a need for alimony. She had been forced to retire from her teaching position early because of a medical condition, which affects her ability to see. Because the trial court reduced the former wife's alimony by $800, the former wife's monthly income will only slightly exceed her expenses. We cannot conclude that the trial court abused its discretion in determining both that the former wife had established a continued need for alimony and that the former husband was not entitled to the termination of his alimony obligation to the former wife.
The former husband next argues that the trial court erred in failing to terminate his obligation to secure his periodic-alimony obligation by maintaining a life-insurance policy naming the former wife as a beneficiary. As he points out in his brief, this court has concluded that a trial court may not require a payor spouse to maintain a life-insurance policy to secure an alimony obligation:
"This court in Lacey v. Lacey, 126 So.3d 1029, 1034 (Ala. Civ. App. 2013), recognized the foregoing distinction when it noted that a periodic-alimony obligation does not survive the
death of the payor spouse and, consequently, that 'life insurance may not be used to fund an obligation that is terminable at death.' In other words, because the purpose of periodic alimony is to provide future support to the payee spouse from the payor spouse's current earnings, see Hager v. Hager, 293 Ala. 47, 55, 299 So.2d 743, 750 (1974), and the obligation to pay periodic alimony to the payee spouse ends upon the death of the payor spouse, see Borton [v. Borton, 230 Ala. 630, 632, 162 So. 529, 531 (1935)], an award requiring the payor spouse to maintain a life-insurance policy to secure that obligation constitutes a 'benevolent gesture' that has no basis in law or equity. Alexander v. Alexander, 65 So.3d 958, 968-69 (Ala. Civ. App. 2010) (Moore, J., concurring in the result). Thus, although a trial court has discretion to award life insurance as a separate award for the benefit of the wife, see Lackey [v. Lackey, 18 So.3d 393 (Ala. Civ. App. 2009)]; Sellers v. Sellers, 893 So.2d 456 (Ala. Civ. App. 2004); Bush v. Bush, 784 So.2d 299, 300 (Ala. Civ. App. 2000); and Strong v. Strong, 709 So.2d 1259 (Ala. Civ. App. 1998), it cannot order the payor spouse to maintain a life-insurance policy to secure a periodic-alimony obligation, which is an obligation that is terminable at the payor spouse's death. Lacey, supra. Therefore, the trial court erred by ordering the husband to maintain a life-insurance policy for the benefit of the wife to secure his periodic-alimony obligation, and its judgment is reversed in this regard."Turney v. Turney, [Ms. 2201007, Dec. 2, 2022]___So. 3d___,___(Ala. Civ. App. 2022) (footnote omitted).
Notably, contrary to the former husband's contention in his brief on appeal, the trial court's imposition of the requirement that the husband in Turney maintain a life-insurance policy was not void; instead, it was legal error that could be corrected on appeal.
However, the trial court did not impose this requirement on the former husband in the May 2023 modification judgment. He voluntarily assumed that requirement when he entered into the settlement agreement incorporated into the 1999 divorce judgment. The requirement that the former husband maintain a life-insurance policy to secure his alimony obligation is therefore the law of the case and not subject to correction in a subsequent modification action or an appeal therefrom. See Hummer v. Loftis, 276 So.3d 215, 224 (Ala. Civ. App. 2018); Hamaker v. Seales, 227 So.3d 32, 39 (Ala. Civ. App. 2016). Our supreme court has explained this principle:
"'This decree settled the equities of the parties and the principles on which the relief was granted, and it was, therefore, a final decree _. No appeal having been taken from that decree within six months from its rendition, matters pertaining to the equities settled by that decree cannot be reviewed on the present appeal entered after the bar had been perfected as to the first final decree.'"Moody v. Myers, 268 Ala. 177, 179, 105 So.2d 54, 56 (1958) (quoting Staley v. International Agric. Corp., 239 Ala. 98, 101, 194 So. 168, 171 (1940)). Although the life-insurance provision is subject to modification for changed circumstances, it is not subject to collateral attack. See Hamaker, 227 So.3d at 39. Put another way, "'[o]n a petition to modify [alimony], a court does not reexamine the evidence to determine if its original judgment was correct; rather, it decides whether modification is warranted based on changed circumstances.'" Hummer, 276 So.3d at 224 (quoting N.T. v. P.G., 54 So.3d 918, 920 (Ala. Civ. App. 2010)). However, the former husband does not argue that he established a material change of circumstances warranting a modification of the requirement that he maintain a life-insurance policy naming the former wife as a beneficiary, and, therefore, he has waived that issue. Hummer, 276 So.3d at 224 (citing Jackson v. Brewer, 257 So.3d 310, 314 n.2 (Ala. Civ. App. 2017)). Accordingly, we affirm the May 2023 modification judgment insofar as it denied the former husband's request that his obligation to maintain a life-insurance policy naming the former wife as a beneficiary be terminated.
The former husband's final argument is that the trial court erred in requiring Davis and Overton to appear at the July 2023 Rule 60(a) hearing. That argument, however, is not a basis for reversal of the May 2023 modification judgment because, as the former wife contends, any potential error that the trial court might have committed was harmless. See Rule 45, Ala. R. App. P. The July 2023 Rule 60(a) hearing occurred well after the entry of the May 2023 modification judgment, and, although the trial court required the attendance of Davis and Overton at that hearing, the trial court did not compel Davis or Overton to represent either party; instead, the trial court questioned Davis and Overton about whether they recalled the discussion at the January 2023 hearing on the former wife's postjudgment motion. After questioning Davis and Overton about their recollection of the discussion at the January 2023 postjudgment hearing, the trial court orally granted their motions to withdraw.
Rule 45 provides that
"[n]o judgment may be reversed or set aside ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."
The former husband has not demonstrated that any of his substantial rights were "probably injuriously affected" by the trial court's decision to have Davis and Overton attend the July 2023 Rule 60(a) hearing. Thus, the trial court's error in having Davis and Overton attend that hearing, if indeed it was error, does not support a reversal of the May 2023 modification judgment.
CL-2023-0446 -- AFFIRMED.
CL-2023-0454 -- PETITION DENIED.
Moore, P.J., and Hanson and Fridy, JJ., concur.