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Landry v. Landry

Alabama Court of Civil Appeals

July 20, 2018

Boyd J. Landry
v.
Angela O. Landry

          Appeal from Autauga Circuit Court (DR-06-65.07)

          MOORE, JUDGE.

         Boyd J. Landry ("the former husband") appeals from a judgment entered by the Autauga Circuit Court ("the trial court") in favor of Angela O. Landry ("the former wife"). We dismiss the appeal in part, affirm the judgment in part, and reverse the judgment in part.

         Procedural History

         The parties were divorced by an October 18, 2007, judgment of the trial court, which incorporated an agreement of the parties. Among other things, that judgment required the former husband to maintain Prepaid Affordable College Tuition ("PACT") program accounts for the benefit of each of the parties' children until such time as each child enters the college of his or her choice, at which time the funds in that child's PACT program account are to be released to the college that that child is attending.

         On November 30, 2016, the former wife filed a petition seeking an ex parte order prohibiting the former husband from disposing of marital assets. Specifically, the former wife alleged that the former husband had failed to maintain and/or had transferred the funds from the children's PACT program accounts. The former wife sought an order from the trial court directing the former husband to reinstate and/or to return the transferred funds to the children's PACT program accounts; restraining the former husband from disposing of, concealing, converting, or dissipating any funds in the PACT program accounts; and awarding her any additional relief as the trial court deemed proper. Also on November 30, 2016, the former wife filed a petition for contempt against the former husband, alleging that he had failed to maintain and/or had transferred the funds from the children's PACT program accounts; she sought, among other things, a finding of contempt against the former husband, attorney's fees, and an order directing the former husband to reinstate and/or to return the transferred funds to the children's PACT program accounts. The trial court entered an ex parte order on November 30, 2016, prohibiting the former husband from disposing of, concealing, converting, or dissipating the funds of the children's PACT program accounts and directing the College Savings Division of the Office of the Treasurer of the State of Alabama to reinstate the children's PACT program accounts and to ensure that they are maintained for the benefit of the parties' children.

         On March 13, 2017, the former husband, who has appeared pro se throughout these proceedings, filed an affidavit of substantial hardship in the trial court. On March 15, 2017, the former husband filed, pro se, an answer to the former wife's contempt petition. On that same date, the former husband filed a motion seeking to extend the time to answer the former wife's contempt petition; the trial court granted that motion on March 20, 2017, and the former husband filed a "second answer" on April 7, 2017. The former husband also filed a "second motion to extend time to answer" on April 7, 2017. On April 13, 2017, the former wife filed a response to the former husband's second motion; she asserted, among other things, that the former husband was gainfully employed and had sufficient means to employ his own counsel. On that same date, the trial court determined that the former husband was not indigent and entered an order denying his request for appointed counsel. On April 26, 2017, the trial court denied the former husband's second motion to extend the time to answer. On that same date, the trial court entered an order, in response to a motion by the former wife, setting the case for a hearing on June 6, 2017.

         The former husband filed a motion to reconsider the trial court's ruling on his affidavit of substantial hardship; the trial court denied that motion on May 15, 2017. The former husband filed an "emergency motion for continuance" on May 24, 2017. He asserted that he had "just been made aware of allegations of possible fraud in this case perpetrated, at a minimum, by the ... former wife and her attorney," which, he argued, would require subpoenas being issued to third-party individuals and for records, among other things. The trial court denied the former husband's motion to continue on May 30, 2017.

         A hearing was conducted on June 6, 2017, after which the trial court entered a judgment that same date finding the former husband in direct criminal contempt and ordering that he be jailed for five days; that, upon his release from custody, the former husband pay $15, 378 to the parties' son's PACT program account and have that account, which had been transferred into the name of the former husband's niece, reinstated in the son's name; and that he pay $2, 638 to the former wife for attorney's fees and expenses.[1] On that same date, the former husband filed a motion seeking "to place all matters heard before the court on record"; the trial court granted that motion. The former husband also filed on June 6, 2017, an "emergency motion for continuance pursuant to Rule 65(b)[, Ala. R. Civ. P.]." In that motion, he alleged that the trial court lacked subject-matter jurisdiction to hear the former wife's contempt petition because, he argued, the former wife's petition for ex parte relief was unresolved and a hearing was required on that petition, in accordance with Rule 65, Ala. R. Civ. P.

         The former wife filed a motion to alter, amend, or clarify on June 22, 2017, indicating that the former husband had failed to pay, upon his release from jail, the amount he was ordered to pay into the son's PACT program account. She requested that the trial court direct the former husband to pay the funds as directed within five days of the date of an amended order, to list the former wife as the owner of the son's PACT program account, to remove the former husband's niece as the beneficiary of the son's PACT program account, and to pay the attorney's fees and expenses previously ordered within five days of the entry of an amended order. On that same date, the former wife filed a motion to enforce the trial court's June 6, 2017, judgment and to hold the former husband in contempt for his failure to comply with that judgment. She sought a finding of contempt against the former husband, as well as the same relief she had sought in her motion to alter, amend, or clarify.

         On June 23, 2017, Judge Sibley Reynolds, the second judge assigned to this case and the judge who entered the June 6, 2017, contempt judgment, entered an order recusing himself from the case. The judge who was reassigned the case entered an order on July 14, 2017, resetting the hearing on the former wife's pending motions for August 2, 2017. On the date of the hearing, the former husband filed a response to the former wife's postjudgment motion and a "counter motion to alter, amend, or vacate." On that same date, the former husband also filed a response to the former wife's motion to enforce the trial court's judgment and to hold the former husband in contempt; included in that response was the former husband's "motion for alternative relief," in which he suggested that the former wife and her attorney should be sanctioned for filing a frivolous motion, pursuant to Rule 11(a), Ala. R. Civ. P., and Rule 4.1, Ala. R. Prof'l Conduct.

         On August 14, 2017, the trial court entered an "order on motion to enforce and motion to clarify," directing the former husband to pay the attorney's fees and expenses ordered on June 6, 2017, within 90 days of the entry of its order; to list the former wife as the co-owner of the son's PACT program account within 5 days of the entry of its order; to remove his niece as the beneficiary of the son's PACT program account within 5 days of the entry of its order; and to not interfere with any PACT program account that exists for the benefit of the parties' son. On September 1, 2017, the former husband filed an "emergency motion to vacate and motion for sanctions." The former husband asserted that the trial court had failed to place the August 2, 2017, hearing on the record despite the previous order granting the former husband's motion to place all matters before the court on the record. He also requested that the former wife and her attorney be sanctioned for knowingly filing false documents; specifically, he alleged that the assertions in the former wife's June 22, 2017, motions were false. The trial court entered an order on September 1, 2017, setting a hearing on the former husband's emergency motion to vacate for September 20, 2017, noting that "[t]he parties shall be ready to argue all motions if the Order is set aside."

         At the hearing on September 20, 2017, the trial court orally granted the former husband's motion to vacate, in part, noting that the failure to conduct the August 2, 2017, hearing on the record was inconsistent with a previous order of the court providing that all matters would be placed on the record. Accordingly, the trial court vacated its August 14, 2017, order. The former wife made a motion to strike the motions filed by the former husband on August 2, 2017, based on their alleged untimeliness. The former wife's attorney conceded that the former husband could respond to the former wife's postjudgment motions; he argued, however, that the portions of the former husband's motions seeking additional relief were due to be stricken as untimely filed postjudgment motions. The trial court orally granted the former wife's motion to strike to the extent the former husband sought postjudgment relief, but it noted that it would consider the former husband's responses to the former wife's postjudgment motion.

         Following the hearing on September 20, 2017, the former husband filed on that same date an "emergency motion to clarify and oppose in writing the former wife's motion to strike the former husband's counter motion to alter, amend, or vacate filed on August 2, 2017. He argued, for the first time, that the trial court should have treated his postjudgment motions as Rule 60(b)(4), Ala. R. Civ. P., motions. On that same date, the former husband filed a motion to set aside the June 6, 2017, contempt judgment as void, pursuant to Rule 60(b)(4), Ala. R. Civ. P. He asserted, among other things, that the judgment was void because the trial court had lacked subject-matter jurisdiction; that the trial court had lacked personal jurisdiction to conduct the June 6, 2017, hearing; and that his due-process rights had been violated. On October 1, 2017, the trial court denied the former husband's motion in opposition to the former wife's motion to strike. On that same date, it also entered an order denying the former husband's motion to set aside the June 6, 2017, contempt judgment. Also on that date, the trial court entered an order vacating its August 14, 2017, order because the August 2, 2017, hearing had not been placed on the record, thereby granting in part the former husband's emergency motion to vacate. Finally, the trial court entered an order on October 1, 2017, permitting the former wife to be listed as the owner of the parties' son's PACT program account, directing the former husband to pay the former wife's attorney's fees and expenses as previously ordered within 45 days of the entry of the October 1, 2017, order, and denying any outstanding requested relief not otherwise addressed by the order.

         On October 5, 2017, the former husband filed an "emergency motion to dismiss" the trial court's order on outstanding motions, asserting that the trial court had lost subject-matter jurisdiction to rule on the former wife's postjudgment motions. On October 10, 2017, the trial court entered an order allowing the former wife to respond to the former husband's motion to dismiss. The former wife filed a response on October 22, 2017, asserting that her postjudgment motions were properly classified as Rule 60, Ala. R. Civ. P., motions and, as a result, that the trial court's order thereon was not barred by the operation of Rule 59.1, Ala. R. Civ. P. On October 25, 2017, the trial court denied the former husband's emergency motion to dismiss. On October 27, 2017, the former husband filed a reply to the former wife's response to his motion. The former husband filed his notice of appeal to this court on November 13, 2017. The husband filed a motion in the trial court seeking to proceed with the appeal in forma pauperis on that same date. The trial court denied the former husband's motion on November 16, 2017.

         Analysis

         The former husband raises the following issues on appeal: (1)whether the trial court lacked personal jurisdiction or subject-matter jurisdiction over him as a result of the reassignment of the case to a different circuit-court judge, (2)whether the trial court violated the former husband's due- process rights when it failed to allow him adequate time to prepare for the hearing on the former wife's contempt petition, (3) whether the trial court erred in failing to conduct a hearing on the former wife's ex parte motion, (4) whether the trial court erred in admitting, over his objection, certain exhibits offered by the former wife at the hearing on her contempt petition, (5) whether the trial court erred in granting the former wife's motion to strike the former husband's postjudgment motion as untimely filed, and (6)whether the former wife's June 22, 2017, motion was a Rule 59, Ala. R. Civ. P., motion and, thus, was denied by operation of law before the trial court entered an order ruling on the motion. We address the issues raised by the former husband out of turn.

         Whether the Trial Court Erred in Granting the Former Wife's Motion to Strike the Former Husband's ...


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