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Wojtala v. Wojtala

Alabama Court of Civil Appeals

July 13, 2018

Thomas Wojtala
v.
Felicia Wojtala

          Appeal from Henry Circuit Court (DR-14-900049)

          THOMPSON, Presiding Judge.

         This is the second time these parties have been before this court. The Henry Circuit Court ("the trial court") entered a judgment in which it, in pertinent part, divorced Felicia Wojtala ("the mother") and Thomas Wojtala ("the father"), awarded the mother custody of the parties' two minor children, and ordered the father to pay child support. The mother appealed, raising a number of issues. In Wojtala v. Wojtala, 241 So.3d 37 (Ala. Civ. App. 2017), this court, among other things, reversed that part of the judgment addressing the issue of child support. 241 So.3d at 40-42. This court determined, in pertinent part, that the trial court had erred in allowing the father certain credits against his $1, 594.01 per month child-support obligation, resulting in the father owing only $242 per month in child support. This court entered its certificate of judgment on July 12, 2017.

         On July 13, 2017, the mother moved the trial court for a hearing to address this court's holding in Wojtala v. Wojtala, supra. The mother later moved for an award of interest on unpaid child support. The trial court then asked the parties to brief certain issues related to the award of child support.

         On October 24, 2017, the trial court entered a judgment redetermining the father's child-support obligation for both children for the period of June 1, 2016, through May 1, 2017, to be $1, 527 per month. One of the children reached the age of majority in May 2017, so the trial court determined that the father's child-support obligation for the remaining minor child was $1, 074 per month. The trial court then determined that the difference between the amounts it had awarded in the October 24, 2017, judgment and the amount of child support the father had paid under the original judgment that was reversed in Wojtala v. Wojtala, supra, and it found that the father owed a child-support arrearage of $15, 466. In addition to his monthly child-support obligation, the trial court ordered the father to pay $200 per month toward the accumulated child-support arrearage. The father filed a postjudgment motion, which was denied by the trial court. The father timely appealed.

         On appeal, the father argues only that the trial court erred in making the child-support determination in the October 24, 2017, judgment "retroactive" to the date of the original divorce judgment. The father relies on Shirley v. Shirley, 361 So.2d 590 (Ala. Civ. App. 1978), in support of his argument.

         In Shirley v. Shirley, supra, this court had earlier reversed an alimony award and support provision of a divorce judgment, and, on remand, the trial court recalculated those obligations and determined that the effective date of the new amounts was the date of this court's earlier decision and judgment. This court affirmed, holding:

"The reversal of a judgment, or a part thereof, wholly annuls it, or the part of it, as if it never existed. Birmingham Elec. Co. v. Alabama Pub. Serv. Comm'n, 254 Ala. 119, 47 So.2d 449 (1950). Another judgment rendered by a court with jurisdiction must thereafter replace it. Such was the effect of our reversal and remandment with direction in this case."

Shirley v. Shirley, 361 So.2d at 591. In reaching that holding, this court explained:

"A review of a final judgment on appeal is in effect a new case. Murphy v. Stewart, 43 U.S. 263, 2 How. 263, 11 L.Ed. 261 (1844). The jurisdiction of the trial court, at least in respect to the matters appealed is ousted and jurisdiction is reposed in the appellate court until it renders judgment with its mandate returning jurisdiction to the trial court. Its judgment becomes the law of the case as of that date. Douglass, Ex'r. v. City Council of Montgomery, 124 Ala. 489, 27 So. 310 (1899). The judgment by its terms may have retroactive application in some instances, particularly where there may have been a stay of the trial court's judgment. In the absence of such direction, as in this case, the increase of support and alimony directed by this court is effective on the date of its judgment. It is our opinion that the rule applies even when the appellate court reverses and renders, entering the judgment the trial court should have entered under the authority of § 12-22-70, Code of Alabama (1975)."

Id. (emphasis added).

         Relying on the holding of Shirley v. Shirley, supra, the father contends that this court's decision in Wojtala v. Wojtala, supra, nullified the child-support provisions of the original divorce judgment and, therefore, that the trial court's award of the correct amount of child support could be effective only from the date of this court's decision in Wojtala v. Wojtala, supra.

         However, in Kreitzberg v. Kreitzberg, 80 So.3d 925 (Ala. Civ. App. 2011) ("Kreitzberg I"), a husband appealed the property-division and periodic-alimony provisions of a judgment that divorced him from his wife. This court reversed the periodic-alimony award on the ground that the amount of that award was excessive, given the facts, and, because matters of alimony and property division are considered together, this court also reversed the property division. Kreitzberg I, supra. On remand from Kreitzberg I, the trial court in that case entered a new judgment dividing the parties' marital property, determining a new periodic-alimony award, and assessing an alimony arrearage for periods during the pendency of Kreitzberg I in which the husband had failed to make any periodic-alimony payment to the wife. The husband appealed, asserting several arguments pertaining to whether the trial court in that case could establish an arrearage or hold him in contempt for failing to pay periodic-alimony during the pendency of the first appeal. Kreitzberg v. Kreitzberg, 131 So.3d 612 (Ala. Civ. App 2013) ("Kreitzberg II").

         In Kreitzberg II, supra, the trial court redetermined the husband's periodic-alimony obligation and ordered that the husband pay an arrearage back to the time of the original divorce judgment based on that newly redetermined amount of periodic alimony. This court acknowledged that in Shirley v.Shirley, supra, it had held that the reversal of a judgment annuls that judgment. Kreitzberg II, 131 So.3d at 626 (citing Shirley v. Shirley, supra). However, this court concluded that the trial court properly determined the husband's ...


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