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Drey v. Petersen

Alabama Court of Civil Appeals

July 27, 2018

Kathryn Drey f/k/a Kathryn Petersen
v.
Bendt W. Petersen

          Appeals from Mobile Circuit Court (DR-04-500711, DR-04-500711.01, DR-04-500711.02, DR-04-500711.03, DR-04-500711.04, DR-04-500711.05, and DR-04-500711.06)

          THOMAS, JUDGE.

         Kathryn Drey f/k/a Kathryn Petersen ("the former wife") and Bendt W. Petersen ("the former husband") were divorced by a judgment entered by the Mobile Circuit Court ("the trial court") in 2005. Pursuant to the parties' divorce judgment, the former husband was required to pay the former wife $400, 000 on or before May 20, 2005, and an additional $66, 667 per year thereafter for several years as a property settlement. The parties have three children, Elizabeth, Margaret, and Lauren, all of whom attended private school at the time of the divorce but are now adults, and, pursuant to the 2005 divorce judgment, the former husband was responsible for the payment of their private-school tuition. Pursuant to a 2010 modification judgment, the former husband was required to pay $2, 500 per month for 24 months toward Elizabeth's college expenses and $1, 750 per month for 48 months toward Margaret's college expenses; in 2012, the former husband was made responsible for Lauren's college expenses in the amount of $30, 000 per year.

         The former husband has a history of failing to timely pay the obligations due under the divorce judgment and the modification judgments. The former wife has, on numerous occasions, resorted to garnishment proceedings to enforce the former husband's monetary obligations under the 2005 divorce judgment and the modification judgments. In May 2012, the former wife filed, and the clerk issued, three garnishments in which she sought to recover $13, 841.95 in past-due postminority educational support and associated interest for Elizabeth, $10, 603.75 in past-due postminority educational support and associated interest for Margaret, and $17, 282.31 for amounts due on the late payment of the 2009 property-settlement payment. In September 2012, the former wife filed, but the clerk did not issue, garnishments seeking to collect $30, 000 in past-due postminority educational support for Lauren, $2, 530 in past-due postminority educational support for Elizabeth, $4, 961.53 for amounts due on the late payment of the 2007 property-settlement payment, $4, 793.75 for amounts due on the late payment of the 2012 property-settlement payment, and $32, 456.08 for 2006 private-school tuition and associated interest. Pursuant to direction from the trial court, the former wife prepared, but did not file, a garnishment seeking $132, 563.91 in amounts due on the late payment of the 2005 property-settlement payment.

         In January 2014, the trial court suggested and the parties agreed to submit the calculation of the amount due to the former wife to a special master. The trial court issued an order of reference to the special master in which the special master was ordered to "determin[e] the amount, if any, that [the former husband] owes to [the former wife] pursuant to prior orders of this court," noting "the difficulty in computing the amount owed ... and resolving the issue of the number of garnishments filed by [the former wife], and the monies owed that would be subject to garnishment." After lengthy proceedings during which the former husband and the former wife submitted documentary evidence and argument, but no testimony, to the special master, the special master issued his report on March 7, 2017. In that report, the special master determined the amount the former husband owed in past-due postminority educational support for each child. In addition, the report stated that "the only amount owed to the [former wife] for property settlement is due from a payment which was due on May 20, 2009. ... Although amounts were paid, they were paid after they were due, and ... the interest due through February 28, 2017, totals $30, 674.84." However, the special master's report did not address the amounts due to the former wife relating to the late payment of the 2012, 2007, and 2005 property-settlement payments or the amount she claimed was due for the 2006 private-school-tuition payment.

         The trial court ordered the parties to file briefs regarding their positions on the report of the special master. In her brief, the former wife specifically challenged the special master's failure to address those amounts she claimed to be owed relating to the 2012, 2007, and 2005 property-settlement payments and the 2006 private-school-tuition payment. After a hearing, the trial court entered a judgment on August 25, 2017, adopting the special master's report. The trial court amended that judgment by order entered on August 30, 2017, and by order entered on September 19, 2017. In its judgment, as amended by the September 19, 2017, order, the trial court awarded the former wife $30, 664.84 for the 2009 property-settlement payment, $14, 848.84 for Margaret's past-due postminority educational support, $18, 343.93 for Elizabeth's past-due postminority educational support, and $50, 100 for Lauren's past-due postminority educational support. Like the special master's report, the trial court's judgment was silent regarding the amounts the former wife complained were due her related to the 2012, 2007, and 2005 property-settlement payments and the amount she claimed was due for the 2006 private-school-tuition payment. The judgment also awarded the former wife attorney fees, condemned all money in the possession of the clerk's office, and ordered the disbursement of those funds to the former wife's attorney. Finally, the judgment "dismissed ALL garnishments." The former wife filed a timely appeal to this court.

         On appeal, the former wife challenges several aspects of the trial court's judgment. She argues that the trial court erred by failing to award her the sums that she complained were due from the former husband related to the 2012, 2007, and 2005 property-settlement payments and the amount she claimed was due for the 2006 private-school-tuition payment. She contends that the trial court lacked the ability to amend its August 25, 2017, judgment. She also contends that the trial court erred by dismissing all garnishments and by entering a new series of judgments. The former husband, despite requesting two enlargements of time, failed to favor this court with a brief.

         We first dispense with the former wife's argument that the trial court was not permitted to amend its August 25, 2017, judgment by its August 30, 2017, and September 19, 2017, orders. She contends that the trial court could have amended its judgment only by complying with either Rule 59(d), Ala. R. Civ. P., or Rule 60(a), Ala. R. Civ. P. We need not discuss the applicability of those rules, however, because the former wife is incorrect. "A trial court has the authority to alter, amend, or vacate a judgment on its own motion within 30 days after the entry of that judgment." Ex parte DiGeronimo, 195 So.3d 963, 968 (Ala. Civ. App. 2015) (citing Pierce v. American Gen. Fin., Inc., 991 So.2d 212, 215 (Ala. 2008)). Both the August 30, 2017, and the September 19, 2017, orders were entered within 30 days of the trial court's original August 25, 2017, judgment. Thus, the trial court's August 30, 2017, and September 19, 2017, orders were proper amendments of the original judgment, and we find no basis for voiding the judgment, as amended by the September 19, 2017, order.

         The former wife next argues that the special master and the trial court erred by failing to determine that the former husband owed the former wife the amounts that she claimed were due to her related to the 2012, 2007, and 2005 property-settlement payments and the 2006 private-school-tuition payment. As noted above, the parties did not present testimonial evidence to the special master or to the trial court. Instead they submitted to the special master portions of transcripts from earlier hearings before the trial court, various orders and judgments of the trial court, and other documentary evidence that each contended supported their positions on the amounts owed to the former wife. Thus, our review of the judgment of the trial court is de novo. McCreless v. Valentin, 121 So.3d 999, 1002 (Ala. Civ. App. 2012) (quoting Phillips v. Knight, 559 So.2d 564, 567 (Ala. 1990)) ("'We review the evidence presented in the record before us without any presumption of correctness, due to the trial judge's having taken no oral testimony.'").

         The 2012 Property-Settlement Garnishment

         In the proceedings before the special master, the former husband challenged the former wife's proposed garnishment related to the 2012 property-settlement payment solely on the ground that the former wife had used the wrong rate of postjudgment interest in calculating the total amount due to be garnished.[1] That is, the former husband admitted that he had not timely paid the 2012 property settlement to the former wife. In her response to the report of the special master, the former wife corrected her computations to reflect the proper interest rate. As the former wife correctly posits, the evidence supports the conclusion that she is due the correct amount of interest on the late 2012 property-settlement payment. Therefore, we agree that the trial court erred by failing to recognize the former wife's right to the amounts she is due from the former husband related to the late 2012 property-settlement payment.[2]

         The 2007 Property-Settlement Garnishment

         The record reflects that in 2007 the former husband failed to pay the property-settlement payment due under the divorce judgment until either December 31, 2007, or January 2, 2008. The former husband challenged the former wife's garnishment seeking amounts due on the late 2007 property-settlement payment, arguing that, during 2007, "the parties were engaged in a dispute about when the property settlement [payment] was due each year" and stating that "the judgment of divorce was not clarified on this point until [the trial court's] order of January 8, 2009." Thus, the former husband's objection to the garnishment concludes, "it is not appropriate to penalize the [former husband] for interest on a sum which, at that time, was not due until the end of the calendar year."

         Indeed, as the former husband contends, the trial court's January 8, 2009, order indicates that "payments pursuant to all property settlements hereinbefore ordered by this court are due on May 20th of each year." However, as the former wife points out, a reading of the original 2005 divorce judgment supports the conclusion that the January 8, 2009, judgment did not alter the date upon which the property-settlement payments were due, but merely reiterated that date to settle the dispute between the parties. As noted above, the former husband has failed to provide this court with a brief, and we have found no authority provided by the former husband in the record supporting a conclusion that the former husband's mistaken belief regarding the date that the property-settlement payment was due would relieve him of the duty to have paid the 2007 property-settlement payment on time, see, generally, Gray v. Bain, 164 So.3d 553, 564 (Ala. 2014) (Per Murdock, J., with two Justices concurring and two Justices concurring in the result) (explaining that, "although a mutual mistake of fact will permit a court to reform or rescind a binding settlement agreement, a unilateral mistake does not justify such relief"), or from the accrual of postjudgment interest on his late payment of that property-settlement ...


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