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Kendrick v. Congo

Alabama Court of Civil Appeals

May 1, 2015

Tabatha Kendrick (Congo)
v.
William Congo

          Appeal from Jackson Circuit Court. (DR-11-900002.02).

         For Appellant: Sharon Doviet, Huntsville.

         For Appellee: Matthew C. Mitchell of Will Parks, P.C., Scottsboro.

         DONALDSON, Judge. Thompson, P.J., and Pittman and Moore, JJ., concur. Thomas, J., concurs in the result, without writing.

          OPINION

          DONALDSON, Judge.

         Tabatha Kendrick (" the former wife" ) appeals an order of the Jackson Circuit Court (" the trial court" ) entered on June 25, 2014, dismissing her petition to modify alimony and for a finding of contempt

Page 905

against William Congo (" the former husband" ).

         The parties were married in 1991. The former husband filed for a divorce on January 27, 2011. On May 23, 2011, the trial court entered pendente lite orders requiring the former husband to pay the former wife $1,400 per month in spousal support and to pay certain monthly bills. The parties reached a settlement agreement that the trial court approved and entered as a final judgment of divorce on January 12, 2012 (" the divorce judgment" ). Pursuant to that agreement, the former husband agreed to continue paying the obligations set out in the pendente lite orders for six months and then to pay to the former wife $2,400 per month as temporary periodic alimony for 24 months thereafter. The divorce judgment ordered the former husband to maintain health insurance for the benefit of the former wife for 36 months unless she became otherwise insured. The divorce judgment further provided that " [former] Husband and [former] Wife agree that the Court retains jurisdiction to review alimony and medical insurance provisions in two (2) years to determine whether it should be terminated, decreased or increased."

         On October 21, 2012, the former wife filed a petition in the trial court (" the .01 action" ) seeking to modify the alimony provisions of the divorce judgment and to hold the former husband in contempt for allegedly failing to pay alimony and to maintain life insurance for the benefit of the former wife in accordance with the divorce judgment. The former husband filed a motion to dismiss the petition, asserting that the former wife's petition was not ripe because two years had not elapsed from the entry of the divorce judgment. After a hearing on May 6, 2013, the trial court entered an order on May 23, 2013, dismissing the .01 action and ruling that the divorce judgment was an integrated-bargain agreement that, by its own terms, was not reviewable by the trial court before July 2014, i.e., when the initial two-year period during which, pursuant to the divorce judgment, the former husband was obligated to pay temporary periodic alimony expired. On May 24, 2013, the former wife filed a motion to alter, amend, or vacate the trial court's May 23 order dismissing the .01 action. On July 11, 2013, the trial court entered an order granting in part and denying in part the former wife's motion; specifically, the trial court reinstated the portions of the .01 action that did not pertain to the former wife's request for a modification of alimony.

         A trial was scheduled for March 17, 2014, on the remaining claims for contempt in the .01 action. On February 27, 2014, the former wife filed a motion for clarification of the trial court's orders of May and July 2013, asking, among other things, " whether the court will hear the arguments and testimony regarding continued periodic alimony at the 3/17/14 hearing." The trial court entered an order the next day, stating:

" By order of May 23, 2013, this court dismissed the [former wife's] alimony modification petition as unripe. See order attached hereto as Exhibit 'A.' Therefore, that petition no longer exists; it is not pending; it cannot be heard on March 17, 2014, or, for that matter, at any other time.
" When the modification of alimony is ripe, a new petition may be filed at that time, served on the [former husband] and will be set in the ordinary course of business."

         A trial was held on March 17, 2014, on the remaining claims in the .01 action. On March 21, 2014, the former wife filed a new petition (" the .02 action" ), requesting that the trial court modify the alimony

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obligations of the former husband before August 2014, that the trial court find the former husband in contempt for failure to maintain health-insurance coverage for the former wife, and that the trial court order the former husband to pay the ...


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