from Winston Circuit Court (DR-11-70)
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.
and Procedural History
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.
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
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
"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. ..."
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.
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.
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.
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.
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 ...