from Crenshaw Circuit Court (DR-13-49)
ON SECOND APPLICATION FOR REHEARING
court's opinion issued on January 20, 2017, is withdrawn,
and the following is substituted therefor.
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.
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.
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
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
"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."
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."
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.
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.
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.
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.
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
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.
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.
"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."
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 ...