April 24, 2015
Bobby Dean Cornelison
Kathleen Theresa Cornelison n/k/a Kathleen Cramer
from Madison Circuit Court. (DR-98-1076.02).
Appellant: Karen Humphrey, Huntsville.
Appellee: Dinah P. Rhodes of Rhodes & Creech, L.L.C.,
Presiding Judge. Pittman, Thomas, Moore, and Donaldson, JJ.,
THOMPSON, Presiding Judge.
Theresa Cornelison n/k/a Kathleen Cramer (" the
wife" ) and Bobby Dean Cornelison (" the
husband" ) were divorced by an August 7, 1998, judgment
of the Madison Circuit Court (" the trial court" ).
That divorce judgment incorporated the terms of a settlement
agreement reached by the parties. In pertinent part, the
divorce judgment provided, with regard to the division of
" 21. The Wife shall be entitled to 50% of the amount of
the Husband's retirement from the National Guard when he
retires from the same. The Wife shall pay all the taxes due
on all of her portion of said retirement benefits.
" The Husband (military member) ... will retire from the
National Guard in June 2005 and he will receive military
retirement benefits at the age of sixty.
" The parties agree that the Wife (recipient spouse),
... shall receive one-half (1/2) of the Husband's
disposable military retirement pay beginning as soon as
practicable upon the Husband's retirement, and continuing
for so long as the Husband is entitled to receive such
benefits. The division of the Husband's military
retirement pay from his service in the National Guard shall
constitute a property settlement to the Wife and shall not be
modifiable in the future.
" The parties' marriage began on September 18, 1980.
The Husband's military service began in June 1979 and it
is estimated that said service will terminate in June 2005.
" The Wife (recipient spouse) is eligible for direct
payment of her portion of the Husband's military
retirement pay from the Defense Finance and Accounting
Service (DFAS) as a result of the parties' being married
for more than ten years of creditable service on active duty
in the National Guard. ...
" The Defense [Finance] and Accounting Service, or its
successor, is authorized and directed to make direct payments
of the Wife's one-half of the Husband's disposable
military retired pay directly to the Wife ... at such address
as she may from time to time provide to DFAS or its
successor. Said payments shall begin effective upon the
Husband's retirement and shall continue payable to the
Wife until the death of the Husband.
" If, during any month that the Husband is entitled to
receive military retired pay, DFAS or its successor shall
fail or refuse to make a direct payment to the Wife and makes
instead payment of the Wife's portion to the Husband,
then the Husband agrees to immediately pay to the Wife her
portion of the military retired pay, it is intended that this
Order shall qualify as a Qualified Domestic Relations Order
as such is defined
under Section 414(p) of the Internal Revenue Service Code of
1986, as amended. The parties agree that this Court shall
retain jurisdiction to amend this Order as might be necessary
to establish or maintain its status as a Qualified Domestic
Relations Order, or otherwise to carry out the intent of this
" 22. The Wife shall be entitled to 50% of the amount in
the Husband's police pensions as of the date of the entry
of a final decree of divorce, it is intended that said amount
as determined by said date is a property settlement and the
Wife shall not be entitled to further benefits from said
plans which may have accrued after said date. The parties
agree that pursuant to Qualified Domestic Relations Orders,
50% of the Husband's pension plans, as of said date,
shall be set aside and segregated for the benefit of the wife
in the PEBSCO, Retirement Systems of Alabama plan, and Police
Office Annuity Funds. Such Qualified Domestic Relations
Orders will be substantially in the form of the Orders which
are attached to this Agreement as Exhibit 'A',
Exhibit 'B', and Exhibit 'C.' The Wife shall
make no other present or future claim with respect to these
19, 1999, the trial court entered an order titled "
Consent Order Modifying Method by Which [the Wife] Receives
Certain Retirement Funds." That order provided:
" This cause comes to be heard on the [the wife's]
motion to alter or amend the divorce [judgment] entered on
August 7, 1998, and the parties have stipulated that they
have reached an agreement regarding the same. Upon
consideration of the same, the Court does hereby ORDER,
ADJUDGE, and DECREE as follows:
" 1. [The husband] is hereby ORDERED to pay to the
[wife] from his retirement benefit through the Retirement
Systems of Alabama, an amount equal to one-half of a
fraction, the numerator of which is 10, and the denominator
of which is the total number of years the [husband] has
participated in the Retirement Systems of Alabama system.
" 2. The [husband] is hereby ORDERED to pay to the
[wife] from his retirement benefit through the Alabama Peace
Officers' Annuity and Benefit Fund, an amount equal to
one-half of a fraction, the numerator of which is 10, and the
denominator of which is the total number of years the
[husband] has participated in the Alabama Peace Officers'
Annuity and Benefit Fund system.
" 3. The [husband] is hereby ORDERED to pay to the
[wife] from his retirement benefit through the Public
Employees Benefit Services Corporation (PEBSCO), an amount
equal to one-half of a fraction, the numerator of which is
10, and the denominator of which is the total number of years
the [husband] has participated in the Public Employees
Benefit Services Corporation (PEBSCO) system.
" 4. The [husband] shall make said payments to the
[wife] on the tenth (10th) day of each month he receives each
said pension or retirement benefits.
" 5. The [husband] shall provide to the [wife] each
month copies of all pay stubs or other evidence showing the
gross amount paid to the [husband] each month for said
" 6. The [wife] is hereby authorized by the Court and by
the [husband] to obtain information from the payors of said
retirement benefits the amount of
the benefits being paid to the [wife] in order to verify the
" 7. The parties reserve the right to petition the Court
for a modification of child support, or any other issues
regarding enforcement of terms of the parties' divorce
decree, which may have occurred prior to the entry of this
order. This consent modification is intended only to modify
the method by which the [wife] receives certain retirement
funds, as the plan administrators will not honor the
Qualified Domestic Relations Order previously entered."
January 29, 2014, the wife filed in the trial court a
petition seeking to have the husband held in contempt for his
alleged failure to comply with the provisions of the August
7, 1998, divorce judgment and the July 19, 1999, consent
order that governed the division of retirement benefits. The
husband answered, denying the material allegations of the
contempt petition. On September 14, 2014, the husband moved
to dismiss the wife's petition, arguing in that motion
that the July 19, 1999, consent order was an improper
modification of the property-settlement provisions of the
divorce judgment and, therefore, that that order could not be
enforced. As part of his motion to dismiss, the husband
sought an order determining that the July 19, 1999, consent
order was invalid for want of subject-matter jurisdiction.
trial court conducted an ore tenus hearing. On September 17,
2014, the trial court entered a judgment determining that the
husband had failed to pay a certain amount due to the wife
from his retirement benefits and determining the amount owed
to the wife. The trial court denied the wife's claim
seeking to have the husband held in contempt. The trial court
also entered a separate order on that same date in which it
denied the husband's motion to dismiss. The husband filed
a postjudgment motion, which the trial court denied. The
husband timely appealed.
appeal, the husband argues only that the trial court erred in
entering its September 17, 2014, judgment because, he
contends, the July 19, 1999, consent order upon which the
2014 judgment is purportedly based is void for want of
subject-matter jurisdiction. We note that, in
addressing this argument, we have elected to interpret the
husband's September 14, 2014, motion to dismiss the
wife's contempt petition as lso seeking relief pursuant
to Rule 60(b)(4), Ala. R. Civ. P.; in other words, we
interpret that motion as seeking an order declaring the July
19, 1999, consent order void for want of jurisdiction. See
T.K.W. v. State Dep't of Human Res. ex rel.
J.B., 119 So.3d 1187, 1194 (Ala.Civ.App. 2013) (noting
that a motion should be interpreted according to its
substance and concluding that the motion at issue in that
case was one filed pursuant to Rule 60(b), Ala. R. Civ. P.).
Accordingly, we conclude that the husband may challenge the
trial court's denial of his motion to dismiss, which,
effectively, denied his request that the July 19, 1999,
consent order be set aside for lack of jurisdiction.
husband points out that the July 19, 1999, consent order
stated that it was entered in response to a Rule 59(e), Ala.
R. Civ. P., postjudgment motion filed by the wife. A valid
Rule 59(e) motion to alter or amend a judgment remains
pending for 90 days, and, if the trial court fails
to rule on the motion within those 90 days, the motion is
deemed denied by operation of law. See Rule 59.1, Ala. R.
Civ. P. Thereafter, a trial court loses jurisdiction to
consider or act upon the postjudgment motion. Sibley v.
Sibley, 90 So.3d 191, 193 (Ala.Civ.App. 2012).
wife submitted into evidence a copy of a 1999 postjudgment
motion provided to her by her attorney; that motion was
unsigned. The wife's attorney represented to the trial
court that he no longer had the 1999 court file and could not
demonstrate when or if the 1999 postjudgment motion had been
filed. The case-action summary for the divorce action does
not indicate that the postjudgment motion was filed; however,
it is clear from the language of the July 19, 1999, consent
order that such a motion was filed. Regardless, it is clear
that a valid Rule 59(e) motion taken from the August 7, 1998,
divorce judgment must have been filed by September 8, 1998.
See Rule 6(a), Ala. R. Civ. P. (governing the computation of
time periods), and Rule 59(e), Ala. R. Civ. P. (governing
postjudgment motions to alter, amend, or vacate a
judgment). Such a motion could remain pending
until December 7, 1998, see Rule 59.1, and would thereafter
be denied by operation of law. Sibley v. Sibley, supra. The
husband argues that the trial court did not have jurisdiction
to enter its July 19, 1999, consent order because, he
contends, that order " modified" the original
property-division provisions of the August 7, 1998, divorce
judgment after the expiration of the 90-day period allowed by
Rule 59.1; he argues the trial court entered that order well
after it had lost jurisdiction to act on the wife's 1999
agree that it appears that the trial court intended that the
July 19, 1999, consent order be entered in response to the
wife's postjudgment motion. The husband's arguments,
however, are based on the assumption that the July 19, 1999,
consent order modified the retirement-benefit provisions of
the August 7, 1998, divorce judgment. In his original brief
submitted to this court, the husband merely alleges in
passing that the July 19, 1999, consent order contained
provisions " expressly different than [those] set
out" in the divorce judgment. The husband makes no
effort to explain the alleged modification set forth in the
consent order. The wife argues in her brief submitted to this
court that the July 19, 1999, consent order did not modify
the divorce judgment. In his reply brief, the husband insists
that the consent order involved a modification of the divorce
judgment; he contends that the consent order " creates a
new property division." The husband argues that the
divorce judgment did not contemplate awarding the wife a
fraction of his retirement benefits, and he states that it is
" not mathematically possible to obtain the same
numerical results as what was stated in" the divorce
judgment. However, the husband, in asserting that argument,
made no attempt to demonstrate to this court how the
calculations of the benefits due under the divorce judgment
are different from those calculated pursuant to the specific
method set forth in the July 19, 1999, consent order.
court has examined the relevant provisions of both the August
7, 1998, divorce judgment and the July 19, 1999, consent
order. The divorce judgment provides, in essence, that the
wife will receive payments representing a 50% interest in
the husband's retirement benefits that had accrued during
the marriage; in other words, the wife was awarded no
interest in any retirement benefits the husband has earned
after the divorce. The July 19, 1999, consent order sets
forth the manner in which the benefits addressed in the
divorce judgment are to be calculated and paid to the wife.
That order provides that the wife is awarded a fractional
interest in the husband's retirement benefits that, from
what this court can discern, is equivalent to one-half the
retirement benefits that accrued during the parties'
marriage. This court is unable to determine in what manner,
if any, the July 19, 1999, consent order modified the
calculation of retirement benefits awarded to the wife under
the terms of the August 7, 1998, divorce judgment. Rather, it
appears that the July 19, 1999, consent order sets forth a
manner of calculating the retirement benefits awarded to the
wife in the divorce judgment.
the divorce judgment specifies that the trial court will
maintain jurisdiction to amend the judgment if necessary to
implement the provisions governing the division of the
retirement benefits. The wife presented evidence during the
hearing in this matter indicating that she was unable to
enforce the Qualified Domestic Relations Orders entered by
the trial court and that she had sought to amend the divorce
judgment to specify the manner in which the retirement
benefits were to be divided. The consent order specifies that
it " is intended only to modify the method by which the
[wife] receives certain retirement funds, as the plan
administrators will not honor the Qualified Domestic
Relations Order previously entered." As stated, this
court is unable to determine that the July 19, 1999, consent
order modified the division of retirement benefits set forth
in the parties' divorce judgment, and the husband has
failed to demonstrate to this court that such a modification
trial court may enter orders clarifying or implementing its
judgment. In Grayson v. Grayson, 628 So.2d 918
(Ala.Civ.App. 1993), the wife in that case filed an action
seeking to enforce a divorce judgment, arguing that the
husband in that case had failed to pay certain debts. The
trial court entered a judgment reaffirming the provisions of
the divorce judgment and finding both parties in contempt.
The wife in that case filed a motion purportedly pursuant to
Rule 59 seeking an order reducing the amounts the husband had
failed to pay into a judgment, and, after the 90 days for
acting on that motion had expired, the trial court entered an
amended order awarding the wife a money judgment. This court
concluded that the trial court had jurisdiction to enter its
amended order because, we held, although " the
wife's motion appears to request a modification of the
judgment pursuant to Rule 59, A[la]. R. Civ. P., the relief
sought by the motion is that the trial court enforce its
original judgment." 628 So.2d at 919. The court
" A trial court possesses an inherent power over its own
judgments that enables it to interpret, implement, or enforce
those judgments. Patterson v. Patterson, 518 So.2d
739 (Ala.Civ.App. 1987). If provisions of a property
settlement are ambiguous, the court may enter an order
clarifying such matters, and such is not a modification of
that agreement. Williams v. Williams, 591 So.2d 879
(Ala.Civ.App. 1991). Property settlements pursuant to divorce
judgments generally are not modifiable; however, this court
has held that although a divorce judgment is final for the
purpose of appeal, it may also be interlocutory in nature
'insofar as necessary to implement or enforce the
provisions as to final disposition of the property.'
Haney v. Haney,
50 Ala.App. 79, 81, 277 So.2d 356, 358 (1973). In Mayhan
v. Mayhan, 395 So.2d 1022 (Ala.Civ.App. 1981), this
court determined that a post-divorce judgment did not modify
the original judgment, rather, it merely clarified or
enforced an ambiguous original judgment.
" In the case sub judice, the original divorce judgment
ordered that the husband 'pay and be responsible' for
certain debts without specifying the manner in which those
debts were to be paid. When the trial court subsequently
entered a judgment against the husband for an amount equal to
the unpaid credit card debts, it 'did no more than
enforce the original judgment, as it was empowered to
do.' Filer v. Filer, 502 So.2d 698, 701 (Ala.
1987). Although the trial court was without jurisdiction to
modify the original judgment on March 9, 1993, it had the
authority to clarify and enforce its original judgment of
divorce on that date."
Grayson v. Grayson, 628 So.2d at 919.
Mayhan v. Mayhan, 395 So.2d 1022 (Ala.Civ.App.
1981), cited in Grayson v. Grayson, supra, the divorce
judgment ordered that the parties' marital home be sold
and the equity evenly divided between the parties. This court
held that the trial court in that case had jurisdiction to
enter a subsequent judgment specifying the manner in which
the sale was to be conducted and the proceeds of the sale
divided. The court explained:
" [T]he 1980 judgment did not modify the 1979 agreement
and judgment. The agreement authorized an equal division of
their equity in the property should the house be sold and no
alteration as to such provision was made by the latest
judgment. The agreement was ambiguous since it did not state
how, when, by whom or in what manner the house would be sold,
and the judgment clarified such matters. By virtue of the
agreement of the parties, the court originally had
jurisdiction of the property. By operation of law, the
circuit court retained jurisdiction for any further judgments
which might be subsequently required in order to enforce,
implement or make a final disposition of the matter."
395 So.2d at 1023-24.
in this case, the parties' divorce judgment specifies
that the wife will receive one-half of the husband's
retirement benefits that had accrued during the parties'
marriage. The parties entered into an agreement, formalized
by the entry of the July 19, 1999, consent order, regarding
the method by which the wife's portion of the retirement
benefits were to be calculated. Given the evidence in the
record, the findings in the trial court's divorce
judgment and the consent order, and the arguments of the
parties, we hold that in entering its July 19, 1999, consent
order, the trial court was exercising its jurisdiction to
implement the terms of the August 7, 1998, divorce judgment.
husband's sole argument in this appeal was that the trial
court lacked subject-matter jurisdiction to enter the July
19, 1999, consent order, and, therefore, that the September
17, 2014, judgment could not be based upon the consent order,
and this court has rejected that argument. The husband has
not raised any other issues pertaining to the propriety of
the September 17, 2014, judgment. Accordingly, we affirm the
September 17, 2014, judgment of the trial court.
Thomas, Moore, and Donaldson, JJ., concur.
We note that the husband has not addressed
the issue whether the trial court could have reached the same
result in its September 17, 2014, judgment had it relied
solely on the August 7, 1998, divorce judgment. We have
elected not to reach that issue and have addressed the appeal
solely based on the issue raised by the husband in his
The 30th day following August 7, 1998, was
Sunday, September 6, 1998. Monday, September 7, 1998, was