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Person v. Person

Alabama Court of Civil Appeals

April 7, 2017

Wesley Person
v.
Lillian Person

         Appeal from Crenshaw Circuit Court (DR-13-49)

          ON SECOND APPLICATION FOR REHEARING

          MOORE, Judge.

         This court's opinion issued on January 20, 2017, is withdrawn, and the following is substituted therefor.

          Wesley Person ("the husband") appeals from a divorce judgment entered by the Crenshaw Circuit Court ("the trial court") to the extent that it ordered him to pay child support and alimony to Lillian Person ("the wife"). He also challenges the ex parte pendente lite order that was entered during the pendency of the divorce proceedings. We reverse the judgment.

         Procedural History

         On August 29, 2013, the wife filed a verified complaint seeking a divorce from the husband. In the complaint, the wife averred that she and the husband, who had been married since 1994, had separated on December 1, 2012, and were living apart. The wife further claimed that she was without sufficient funds to provide for herself and the parties' minor children and that the husband had failed to provide any financial support to her and the children during their separation. The wife requested, among other things, that the trial court enter an ex parte temporary restraining order awarding her custody of the children, $6, 000 per month in child support, and $10, 000 per month in alimony. On September 4, 2013, the trial court entered an order ("the September 2013 ex parte pendente lite order") requiring the parties to seek a mediator and to establish a mediation schedule within 30 days of service of process. The September 2013 ex parte pendente lite order further provided that, in the event the parties did not schedule mediation as ordered, the husband should pay to the wife the child support and alimony she had requested commencing on October 1, 2013, and continuing every month thereafter.

         The wife subsequently served the summons and the complaint on the husband on September 6, 2013. On October 7, 2013, the husband filed a motion to change venue, which was denied on October 9, 2013. On February 6, 2014, the wife filed a motion to enforce the September 2013 ex parte pendente lite order. In that motion, the wife asserted that the parties had not conducted mediation as required and that the husband had not paid any alimony or child support. The wife requested that the trial court determine the amount of the husband's arrearage and order him to pay that amount. The husband responded by notifying the trial court of his willingness and intention to mediate the case and by requesting that the trial court deny the wife's motion. On April 8, 2014, the husband answered the complaint and counterclaimed for a divorce. On February 17, 2015, the wife amended her complaint, adding allegations that the husband had committed adultery.

         After a trial on April 28, 2015, the trial court entered a judgment on July 31, 2015, finding that the husband had committed adultery during the parties' marriage, dividing the parties' property, ordering the husband to pay $1, 000 per month in alimony, awarding the wife sole physical and legal custody of the parties' minor children, ordering the husband to pay $2, 500 per month in child support, and establishing that the husband owed an arrearage of $320, 000 arising from the September 2013 ex parte pendente lite order. With regard to child support, the trial court specifically stated:

"As to present, and future child support, the provisions of Rule 32, [Ala. R. Jud. Admin., ] have not been followed in the award of child support herein made. This court finds that the application of said guidelines in this case would be manifestly unfair or inequitable because the parties live on an undetermined amount of income."

         The trial court also stated:

"While the Court finds that the [husband] is in fact $320, 000.00 in arrears in respect to child support and spousal support, the court defers, at this time, to make any ruling in respect to the payment of such arrearage. Provisions for the payment of the arrearage will depend upon the manner in which the parties comply with all of the other provisions in this order. A decision will be entered by this court as to the payment of the above arrearage after the court has determined the manner in which each party has complied with all the other provisions in this order."

         On August 27, 2015, the husband filed a postjudgment motion. On October 26, 2015, the postjudgment motion was denied. On December 7, 2015, the husband filed his notice of appeal.

         Facts

         The evidence indicated that the parties had been married over 20 years at the time of the trial. During the marriage, the husband had played for the National Basketball Association ("the NBA") for 11 years and had earned $40 million. At the time of the trial, the parties had a Prudential Annuities Service Account valued at $2.2 million and a Polaris Platinum II Awards Annuity with an estimated value of $91, 000; those accounts were awarded to the wife. The husband also had a pension through the NBA that he testified was valued at $711, 000; that pension was awarded to the husband. The parties also owned multiple homes, farmland, a community center, a skating rink, a bowling alley, and approximately 20 vehicles.

         The evidence also indicated that the wife does not have a college degree and that she had never worked during the marriage. The evidence indicated further that the parties' income in the years leading up to the separation had been solely from their approximately $5 million in investments. The wife testified that the husband had spent over $1 million during the parties' separation. She further testified that she had heard that the husband has secret financial accounts but that she had been unable to locate any additional accounts.

         Finally, there was evidence presented indicating that the husband had committed adultery. Additionally, the husband admitted that he had failed to pay any pendente lite child support or alimony for over two years during the pendency of this case.

         Discussion

          I.

         On appeal, the husband argues that the judgment is not final because the trial court declined to provide for the manner of payment of the arrearage accruing from the September 2013 ex parte pendente lite order. The trial court clearly set forth the amount of arrearage owed by the husband for pendente lite alimony and child support. Compare D.M.P.C.P. v. T.J.C., 91 So.3d 75, 76 (Ala. Civ. App. 2012) (noting that the trial court's "failure to adjudicate the amount of the father's child-support arrearage render[ed] the ... order from which the mother has appealed nonfinal"); Johnson v. Johnson, 191 So.3d 164, 171 (Ala. Civ. App. 2015) (holding that alimony arrearage arising from pendente lite order becomes part of final judgment when expressly included therein). A determination of a party's arrearage is "the equivalent of a monetary judgment for that amount." Henderson v. Henderson, 680 So.2d 373, 374 (Ala. Civ. App. 1996). Such a judgment may be collected by "'any ... process for collection of the judgment, such as garnishment.'" State ex rel. Walker v. Walker, 58 So.3d 823, 828 (Ala. Civ. App. 2010) (quoting Leopold v. Leopold, 955 So.2d 1031, 1036 (Ala. Civ. App. 2006)). Therefore, we conclude that the divorce judgment is final so as to support the present appeal even though the trial court did not expressly declare the mechanism of enforcement.

         II.

         The husband next argues that the $320, 000 arrearage arises from a void order. Specifically, the husband contends that the trial court entered the September 2013 ex parte pendente lite order establishing his interim alimony and child-support obligations in violation of Rule 65(b), Ala. R. Civ. P., thereby rendering that order a nullity.

         Ordinarily, on appeal from a final judgment of divorce, this court cannot review the merits of a pendente lite order. As we explained in Morgan v. Morgan, 183 So.3d 945, 966 (Ala. Civ. App. 2014):

"A pendente lite order is replaced by the entry of a final judgment. Reid v. Reid, 897 So.2d 349, 355 (Ala. Civ. App. 2004) ('A pendente lite order is one entered during the pendency of litigation, and such an order is generally replaced by a final judgment.'). Thus, a pendente lite order is not made final by the entry of a final judgment such that it may be appealed as a part of the final judgment. Rather, the review of a pendente lite support order 'is by way of mandamus, inasmuch as it is not a final [judgment].' Sizemore v. Sizemore, 423 So.2d 239, 241 (Ala. Civ. App. 1982). See also Ashbee v. Ashbee, 431 So.2d 1312, 1313 (Ala. Civ. App. 1983) ('As to the wife's claim that alimony pendente lite should have been awarded, we note that the proper method of seeking appellate review of such an action on the part of the trial court is through a petition for a writ of mandamus. ... Since this issue has been raised improperly, we are unable to consider it [in an appeal of a final divorce judgment].') (citing Sizemore v. Sizemore, supra). Accordingly, the husband may not raise issues pertaining to the propriety of the ... pendente lite support order in th[e] appeal of the final divorce judgment."

         However, the husband points out that a void judgment may be attacked "at any time, " Hodges v. Archer, 286 Ala. 457, 459, 241 So.2d 324, 326 (1970), and that our supreme court considered the validity of an ex parte pendente lite order following the entry ...


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