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Espinosa v. Espinosa Hernandez

Alabama Court of Civil Appeals

March 29, 2019


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          Appeal from Madison Circuit Court (DR-04-803.01). Donna S. Pate, Judge

          Tiffin M. Taylor, Huntsville, for appellant.

          Submitted on appellant’s brief only.


         EDWARDS, Judge.

          Mario J. Espinosa ("the father") appeals from a January 31, 2018, order entered by the Madison Circuit Court ("the trial court") requiring him to pay $27,956.02 as a child-support arrearage to his former wife, Tamarie Espinosa Hernandez ("the mother"). Because we conclude that the father’s appeal is from a void judgment, we dismiss his appeal.

          Facts and Procedural History

         The father and the mother married on July 17, 1993, in Moca, Puerto Rico. They eventually moved to Alabama, but stopped residing together in March 2004. They have two children: Mario Jr., who was born on July 14, 1995, and Alex, who was born on October 13, 1998. The mother was diagnosed with multiple sclerosis when she was 19 years old, while she and the father were dating.

          On June 28, 2004, the trial court entered a judgment divorcing the father and the mother and adopting a settlement agreement they had reached as to property division, custody, the payment by the father

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of $1,850 per month as periodic alimony to the mother, and the payment of child support to the mother. The June 2004 divorce judgment awarded the father and the mother joint custody of the children. As to child support, the parties’ settlement agreement provided that the father would pay $1,400 per month "toward the support and maintenance of the parties’ minor children" and that the father’s monthly child-support payments

"shall commence on the 1st day of the month immediately following the signing of this Agreement and shall be due and payable on the 1st day of each month thereafter, until said child shall reach the age of majority according to the State of Alabama, shall marry, die, or otherwise become emancipated."[1]

          The judgment noted that the child-support award deviated from the child-support guidelines. See Rule 32(A)(1), Ala. R. Jud. Admin.

         On February 12, 2009, the mother filed a petition seeking to hold the father in contempt for noncompliance with the June 2004 divorce judgment. According to the mother’s petition, the father was wrongfully deducting certain expenses from his alimony and child-support payments. The father filed an answer denying the mother’s allegations, and he filed a counterpetition seeking to terminate his periodic-alimony obligation and to modify his child-support obligation.[2] The mother filed a reply to the father’s counterpetition on May 12, 2009, and she later amended her contempt petition to include a request for an increase in the father’s periodic-alimony obligation based on an alleged increase in the father’s income and in the mother’s medical and living expenses.

          Trial on the mother’s amended contempt petition and the father’s counterpetition was continued several times, and ore tenus proceedings were conducted on October 28, 2009, and April 12, 2010. On November 29, 2010, the trial court entered an order ("the November 2010 order") denying the mother’s request for an increase in periodic alimony and declaring that the father was not in arrears as to his periodic-alimony obligation or his child-support obligation. Further, the November 2010 order required the father to pay the oldest child’s private-school tuition, but authorized him to deduct the tuition payment from his $1,400 per month child-support obligation. The November 2010 order continued:

"The maximum amount to deduct shall be the advertised rate of monthly tuition

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as published by Catholic High School for a given calendar year. In the event the parties obtain a deferment and the [father] pays an amount less than that of the published rate of monthly tuition for a given year then he shall only reduce the child support monthly by that lesser amount. Verification of the tuition shall be provided each year.
"This reduction shall continue until the child graduates from Catholic High School, should the child[’s] graduation from Catholic High School [occur] prior to his nineteenth birthday the [father] shall pay to the [mother] the amount of One Thousand Dollars ($1,000.00) per month in child support until such time as the child reaches the age of nineteen, dies, remarries, or otherwise becomes self supporting."[3]

          The last paragraph of the November 2010 order states: "All other provisions of the previous Orders of this Court shall remain in full, force and effect. All other further, and different relief is denied."

          On December 10, 2010, the mother filed a motion to alter, amend, or vacate the November 2010 order or, in the alternative, to grant the mother a new trial. In her postjudgment motion, the mother argued that the November 2010 order was inconsistent with the evidence presented at trial. She also argued that the circumstances that existed at the time of the trial in April 2010 had changed by the time the trial court entered the November 2010 order, particularly as to the impact of the oldest child’s

"enrollment in Catholic High for the 2010-2011 school year. For the 2010-2011 year, [the mother] enrolled [the oldest child] in Catholic High. Because of her low income, [the mother] received a tuition assistance grant ... for the 2010-2011 school year in the amount of $5,900. Therefore, [the mother] owed just $83.33 [a month] toward [the oldest child’s] tuition at Catholic High for the 2010-2011 school year....
"However, after entry of the [November 2010] order, ... the [father] proceeded to take that order to Catholic High. Catholic High thereupon re-evaluated [the oldest child’s] tuition assistance grant based on the [father’s] income, because the order stated that the [father] is responsible for paying for [the oldest child’s] tuition at Catholic High. As a result, [the oldest child’s] tuition was increased from $83.33 a month to $625.00 a month. Not only is this a pointless increase in tuition that can be corrected by amendment to this Court’s order, it further reduces [the mother’s] child support without justification. A letter from Catholic High providing the new total due for 2010-2011 is attached as Exhibit B hereto.
"This new evidence is extremely important because it completely alters the equities of the situation and undermines the basis of the Court’s decision. The effect of the Court’s order is to increase [the oldest child’s] tuition at Catholic High and to drastically reduce [the mother’s] child support. As the order currently stands, [the mother’s] child support is reduced by $625.00. Thus, instead of [the mother] receiving $1,400.00 a month in child support to support the minor children, [she] is now going to receive $775.00.

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"This unwarranted reduction will be disastrous for [the mother] because she is using the child support she receives to cover the tuition of [the youngest child] at Catholic Middle School, and all the expenses and activities in which the children are involved. After payment of schooling, there will be inadequate child support remaining to feed and clothe the minor children. Additional child support could be used to support the minor children if the Court’s order simply provided that [the mother] is responsible for paying [the oldest child’s] tuition at Catholic High.

"For all of these reasons, if the Court refuses to amend its order based upon this new evidence alone, it must grant the alternative motion for a new trial in order to consider this recently discovered evidence that was not available at an earlier time."

          The mother’s postjudgment motion further argued that the trial court’s denial of her request to increase her periodic alimony was inconsistent with the evidence presented at trial because, she said, she was unable to work due to her multiple sclerosis and because the father’s income had substantially increased, as had the mother’s living expenses. The mother requested a hearing on her postjudgment motion, and she subsequently filed a separate motion requesting a hearing, but the State Judicial Information System ("SJIS") case-action-summary sheet does not reflect a ruling on the motion for a hearing.

         The parties appeared before the trial court on March 4, 2011, on the mother’s postjudgment motion.[4] On that date, the trial court made a handwritten entry on the first page of the mother’s postjudgment motion. That entry states:

"[The mother’s] motion to alter or amend [the November 2010 order] of modification of the [June 2004 divorce judgment] is hereby granted. A hearing will be set to determine the exact terms of altering or amending said Order on 3/15/11 at 9:30 a.m."

         The entry is followed by the signature of Madison Circuit Judge Laura Hamilton, the judge to whom the case originally was assigned.[5] According to an SJIS case-action-summary-sheet entry of March 4, 2011, an order on the mother’s postjudgment motion was "scanned" on March 4, 2011. Also, the record includes a copy of the mother’s postjudgment motion that reflects that the motion was filed in the trial court on March 9, 2011.[6] Both March 4,

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2011, and March 9, 2011, were within 90 days of December 10, 2010. See Rule 59.1, Ala. R. Civ. P. Apparently, no hearing was held on March 15, 2011, "to determine the exact terms of altering or ...

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