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Harrison v. Harrison

Alabama Court of Civil Appeals

January 20, 2017

Margaret Ann Harrison
v.
Boyde Jerome Harrison

         Appeal from Winston Circuit Court (DR-11-70)

          PER CURIAM.

         Margaret Ann Harrison ("the wife") appeals from a June 25, 2015, order of the Winston Circuit Court ("the trial court") declaring a prenuptial agreement ("the agreement") entered into between the wife and Boyde Jerome Harrison ("the husband") to be enforceable in a pending divorce proceeding between the parties. We affirm the judgment of the trial court.

         Facts and Procedural History

         The parties were married December 11, 1985. They signed the agreement on the morning of their wedding. In August 2011, the wife filed a complaint for a divorce in the trial court. The husband filed his answer, asserting various affirmative defenses, and a counterclaim for a divorce. In his answer and counterclaim, the husband asserted that the agreement controlled the division of assets and debts in the divorce proceeding. The wife filed a reply to the husband's counterclaim in which she asserted that the agreement had been made void on May 22, 2010. The husband filed a motion to bifurcate the trial on the issue of the validity of the agreement from the divorce trial, which was granted.

         On April 11, 2014, the trial court held a trial on the issue of the validity of the agreement. During the trial, the husband filed a "motion for a judgment as a matter of law" pursuant to "Rule 50(a)." We note that Rule 50(a), Ala. R. Civ. P., is applicable only in cases involving a jury trial and, therefore, would not apply in this case. We presume that the husband intended to file a motion for a judgment on partial findings, pursuant to Rule 52(c), Ala. R. Civ. P., but it does not appear that the trial court ruled on that motion.

         The testimony and other evidence indicated the following. According to the wife, in 2010 she found inappropriate text messages between the husband and another woman. The wife found the husband and the other woman at the husband's office after working hours one night. The wife testified that the husband asked her not to leave him. The wife, unbeknownst to the husband at that time, sought the advice of an attorney regarding how to void the agreement. The wife testified that she then prepared a list of items that she believed were necessary for the parties to stay married ("the list"). The last item on the list read, in pertinent part:

"I am willing to do this and put things behind us if you will show me that you are committed to the future of our marriage by doing away with the [agreement]. This will be a sign to me that you mean what you say and that you are committed to making our marriage work. I also want my name on everything with yours, like other married couples. ..."

         The wife testified that she presented the list to the husband while both parties were at home, that the husband wrote "I agree to this" on the list, and that they both signed and dated the list after they had discussed each item. The wife testified that the husband then retrieved the agreement from a safe and that the husband drew an "X" across the front of the agreement. The wife testified that she wrote "voided 5/22/10" on the agreement and that both she and the husband wrote their initials on the front page of the agreement. On the signature page of the agreement, the wife wrote: "This agreement is voided as of 5/22/10 per Jerry Harrison, M.D. and Margaret Harrison. This copy and all other copies voided." The wife testified that she signed her name to that portion of the agreement and that the husband placed his initials where she had signed.

         In contrast, the husband testified that the wife had presented the list to him while he was busy at work. The husband testified that, at the time, the parties were preparing to go on an extended vacation to Italy and he was attempting to complete his review of medical charts of patients of his medical practice and of patients of nursing homes for which he provided services. The husband also testified that the parties had attended the funeral of a close friend that day. The husband testified that it was the wife's (and his) normal practice to prepare lists to discuss issues, and the husband testified that he signed the list so that the wife would leave and he could finish his work. The husband testified that he had no memory of signing or initialing the agreement at that time. The husband testified that, had he known that the wife had consulted an attorney, that his marriage was in jeopardy, or that the wife was attempting to modify or void the agreement, he would have consulted an attorney as well. The husband denied that he agreed to void or modify the agreement. The parties continued to live together until August 2011, which is when the wife asserts that she discovered that the husband was having an affair with another woman. The wife, without notifying the husband of her intentions, filed a complaint for a divorce in the trial court. The wife testified that she and the husband then met and discussed the possibility of reconciliation. Each party brought a list of talking points to that meeting. One item on the wife's list read: "Pre-nup before lawyer and notarized (null and void)." Regarding that statement, the wife testified: "It's not for it to be done. It had already been done. ... [The husband] requested it be done before a lawyer and notarized. He had requested that of me." The husband testified that, at that meeting, the wife told him that she wanted to "take the prenuptial, get lawyers, rescind it, and have it notarized." The husband testified that he first learned that the wife was claiming that the agreement had purportedly been voided in 2010 after the wife had filed a complaint for a divorce in 2011.

         Dr. Richard Roper testified as an expert in forensic document examination on behalf of the wife. Dr. Roper testified that the wife provided him documents that were identified as containing "known signatures and initials" of the husband. Dr. Roper testified that he performed a comparison study between the handwriting on the agreement and the "known" sources of the husband's handwriting. Dr. Roper testified that the "known" samples that were provided to him all had variations. Dr. Roper's opinion was that the husband's handwritten initials on the first page and on the signature page of the agreement were "very probably written by the writer of the known signatures or initials, " although he agreed that there were a range of opinions that a document examiner could give in comparing handwriting samples. On cross-examination, Dr. Roper testified that, if a person "made a study and worked toward that end, they could do a pretty good rendition [of another person's handwriting]." Dr. Roper also testified that he could not completely rule out that the handwritten initials of the husband were written by someone other than the husband. Dr. Roper further admitted that the handwritten initials of the husband on the front of the agreement appeared different from the handwritten initials of the husband on the signature page of the agreement.

         On June 25, 2015, the trial court entered an order finding the agreement to be valid and enforceable in the divorce proceeding. On July 23, 2015, the wife filed a motion to alter, amend, or vacate the trial court's order. On October 5, 2015, the trial court entered an order denying the wife's motion. On November 4, 2015, the wife filed her first notice of appeal to this court.

         On June 10, 2016, this court issued an opinion holding that the wife's appeal was from a non final judgment and remanding the cause to the trial court to determine if certification of the June 25, 2015, order pursuant to Rule 54(b), Ala. R. Civ. P., would be appropriate. Harrison v. Harrison, [Ms. 2150138, June 10, 2016] ___ So.3d ___ (Ala. Civ. App. 2016). We ordered that unless such a certification was made within 14 days, the appeal would be dismissed. On June 10, 2016, the wife filed a motion requesting that the trial court enter an order, pursuant to Rule 54(b), certifying its June 25, 2015, order as final. The husband filed a response opposing Rule 54(b) certification. On June 28, 2016, having received no certification order, this court dismissed the ...


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