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Andrews v. Andrews

Alabama Court of Civil Appeals

December 15, 2017

Timothy Andrews
Wanda Andrews

         Appeal from Houston Circuit Court (DR-13-900412.01)

          THOMPSON, Presiding Judge.

         Timothy Andrews ("the husband") and Wanda Andrews ("the wife) were divorced by an October 2, 2013, judgment of the Houston Circuit Court ("the trial court") that incorporated a settlement agreement reached by the parties. The October 2, 2013, divorce judgment provided, in relevant part:

"(5) ALIMONY: The husband shall pay to the wife the sum of $500 each month, for a period of eight (8) years, as alimony in gross. That said alimony shall begin on the first day of the month immediately following the signing of this agreement.
"(6) MISCELLANEOUS: That the husband shall maintain his current life insurance policy with Alfa Insurance with the wife named as the irrevocable beneficiary for a period of eight (8) years."

         On June 16, 2016, the wife filed a petition for a rule nisi in the trial court, alleging that the husband had failed to pay alimony as required by the divorce judgment and had failed to maintain the life-insurance policy. The wife sought to have the husband held in contempt for his alleged failure to comply with the above-referenced provisions of the divorce judgment and sought a judgment for the amount of the accumulated arrearage and an award of an attorney fee.

         The husband answered and denied liability, and he sought to dismiss the wife's petition. The husband later counterclaimed seeking to reduce or eliminate his alimony obligation, which he characterized as one for periodic alimony. Before the trial court, the husband argued, among other things, that his alimony obligation had terminated because the wife had remarried; he cited as support for his position § 30-2-55, Ala. Code 1975 ("Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried ...."). The wife maintained that the husband's alimony obligation had not terminated upon her remarriage because, she said, the obligation was one for alimony in gross, or a property settlement, as opposed to periodic alimony. See Lacey v. Lacey, 126 So.3d 1029, 1035 (Ala. Civ. App. 2013) ("An award of alimony in gross is in the nature of a property division, and such an award is not subject to modification.").

         The trial court conducted an ore tenus hearing. On November 29, 2016, the trial court entered a judgment concluding that the alimony award and the provision requiring the husband to maintain the life-insurance policy were awards of alimony in gross that were not subject to modification. The trial court found the husband in contempt of the 2013 divorce judgment and ordered that he purge himself of contempt by paying the wife $9, 000 as an arrearage in alimony in gross within 90 days. The trial court also denied the husband's counterclaim. The husband filed a postjudgment motion, which the trial court denied. The husband filed a timely notice of appeal.

         After reviewing the record on submission, this court discovered that the husband had stated during his testimony at the ore tenus hearing that he had filed a bankruptcy action in 2015 and that, if the trial court did not eliminate the alimony obligation, he intended to amend that bankruptcy action to include that obligation. This court issued an order on August 30, 2017, requiring the parties to submit letter briefs regarding the status of that bankruptcy action and whether, if it had been amended, the bankruptcy court had issued a stay that would prohibit this court's consideration of the issues raised in this appeal; in that order, this court cited 11 U.S.C. § 362(a), and Hill v. Hill, 730 So.2d 248, 251 (Ala. Civ. App. 1999).

         In response to this court's order, the husband submitted a letter brief in which he represented that he had been discharged from bankruptcy in August 2015 and that he had reopened the bankruptcy case following the entry of the trial court's November 29, 2016, judgment to amend his bankruptcy petition and the relevant schedules to include his alimony-in-gross obligation; the husband argued that his reopening the bankruptcy proceeding triggered the automatic-stay provisions of 11 U.S.C. § 362(a). In his filing before this court, the husband asserted that the wife had not objected to the amendment to his bankruptcy petition and that, "[c]learly, the bankruptcy was automatically closed on July 10, 2017[, ] without making a determination of the dischargeability of the identified debts to the [w]ife ...." In support of those assertions, the husband attached to his letter brief only a "case summary" of the bankruptcy action, which indicates that the wife was listed as a creditor in the bankruptcy action, that the husband was discharged from Chapter 7 bankruptcy on August 3, 2015, that his bankruptcy case was reopened on January 6, 2017, and that the bankruptcy action was "terminated" on July 10, 2017.

         On September 7, 2017, this court issued a second order requiring the parties to submit letter briefs regarding the validity of the husband's notice of appeal, citing Hewett v. Wells Fargo Bank, N.A., 197 So.3d 1105, 1106 (Fla. Dist. Ct. App. 2016) ("[T]he filing of a notice of appeal during the pendency of a bankruptcy stay should be deemed void as a violation of the automatic stay."); In re Capgro Leasing Associates, 169 B.R. 305, 310 (Bankr. E.D.N.Y. 1994)("Eight of the twelve circuit courts of appeals have held that the automatic stay prevents a debtor from appealing the decision of a non-bankruptcy forum, where that action was originally commenced against the debtor."); and Autoskill Inc. v. National Educational Support Systems, Inc., 994 F.2d 1476, 1486 (10th Cir. 1993) ("'Rule 6009, [Fed. R. Bankr. P., ] along with [11 U.S.C. §] 362 itself, make it clear that the automatic stay does not apply to the continued prosecution of actions by the trustee or debtor in possession. Those entities may continue or pursue litigation without leave of court (or release of stay under section 362).'" (quoting 8 Collier on Bankruptcy ¶ 6009.03 & n. 7, at 6009-3 (15th ed. 1992))), overruled on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011).

         The wife complied with this court's September 7, 2017, order and submitted a letter brief in which she asserted that, based on Autoskill, 994 F.2d at 1486, the husband's notice of appeal was valid and that we should affirm the trial court's judgment. After seeking an extension, which we granted, the husband also complied with this court's second order requesting letter briefs regarding the husband's bankruptcy filing. Although not abundantly clear from the husband's second letter brief, it appears that the husband also believes his notice of appeal was valid based on the reasoning set forth in Autoskill, 994 F.2d at 1486. The husband concluded his second letter brief with one sentence asserting, for the first time and without citations to any supporting authority, that the trial court's judgment was void because, he says, the wife's "claims would have been covered in the bankruptcy and no stay was requested nor was any amended claim filed post petition when the bankruptcy was reopened."

         As an initial matter, we first address whether the husband violated an automatic stay of the bankruptcy court when he filed his notice of appeal of the November 29, 2016, judgment in this court. 11 U.S.C. § 362 provides, in relevant part:

"(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, ...

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