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Wikle v. Boyd

Alabama Court of Civil Appeals

December 20, 2019

Jonathan B. WIKLE,
Hilary BOYD.

         Appeal from Dale Circuit Court (DR-11-636.01)

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[Copyrighted Material Omitted]

Page 1257

          Charles Neville Reese of Reese & Reese Attorneys, P.C., Daleville, for appellant.

          Jason R. Brogden of The Brodgen Law Firm, L.L.C., Ozark, for appellee.

         EDWARDS, Judge.

         Jonathan B. Wikle ("the former husband") and Hilary Boyd ("the former wife") were divorced by a 2011 judgment ("the 2011 divorce judgment") of the Dale Circuit Court ("the trial court"), which incorporated an agreement of the parties ("the divorce agreement") relating to the division of their assets. The divorce agreement reads, in pertinent part, as follows:


"(A) That no periodic or rehabilitative spousal support shall be paid by the [former] husband to the [former] wife.


"(A) The parties shall have all right, title and interest in, and to any personal property, they now have in their possession, and that each of the parties now has, in their possession, the personal property they want and desire[,] and they hereby ratify that division of personal property.

"(B) Specified Property Settlement; Specialized Monetary Obligations Provisions:

"(i) Hereby deemed as a property settlement by the parties, the [former] husband agrees to be responsible for, maintain and thus pay for the [former]

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wife's current future household bills and other typical/traditional living expenses for the next seven (7) years beginning on November 1st, 2011, and continuing for a period for seven (7) total years. Said bills shall be payable from the [former] husband's military base pay as detailed on his `LES', and any supplementary payments/bonus/stipends received from the United States Military. If the [former] husband is discharged, honorably or dishonorably from his employer, he shall not be relinquished from any said responsibilities detailed below. The [former] wife's bills and/or living expenses include but are not limited to her:

"(A) Household bills/utilities:

"1) Rent/Mortgage payments (approximately $840.00),

"2) Power (Pea River Electric — approximately $250.00),

"3) Water (Culligan — approximately $60.00),

"4) Gas (Southeast AL Gas — approximately $25.00),

"5) Cable & Internet (Cobridge Communications approximately $85.00),

"6) Home Phone (Century Tel — approximately $110.00),

"7) Trash (Ozark Utilities Board — approximately $60.00),

"8) Pest Control (Orkin — approximately $36.00),

"9) ADT Security (approximately $28.99),

"10) Lawn Care (True Green — approximately $65.00), and

"(B) Other:

"1) Cell Phone payments (AT& T — approximately $272.00),

"2) `Petsmart' health insurance for the parties' animals,

"3) `Banfield' wellness plan (approximately — $31.95),

"4) Gym Membership (Synergy — approximately $37.79).

"(ii) If the [former] wife relocates her principle [sic] place of residence, prior to the cessation of the seven (7) year period, the [former] husband shall still be responsible for all the new and reasonable household and other bills as set out in paragraph `i' above. The [former] husband shall additionally be responsible for said debts; notwithstanding increased rates due to inflation and/or geographical location of the [former] wife's proposed residence or due to the standards of living in the community she so chooses to reside.

"(iii) This agreement was made based on a culmination in [sic] the totality of circumstances of the parties' current standard of living demonstrating that:

"1) the [former] husband ... has a clear ability to pay both his and the [former wife's] household and other bills/debt for the outlined time period;

"2) the [former] wife's need for said bills to be paid based on her status as a college student;

"3) the obvious great disparity in [in]come between the parties; and

"4) Based upon the fact that the [former] husband has been the primary financial provider for the [former] wife since 1999.

"(iv) This specific provision of paragraph (2)(B), and all subsections, is entered into by the parties because it shall maintain the `status quo' for each the [former] husband and [the former] wife upon ratification and incorporation of this agreement into a final

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decree. Moreover, the parties have specifically taken into account the:

"1) standard of living during the course of the marriage;

"2) future prospects, potential for maintaining their standard of living after their divorce;

"3) age and gender of each;

"4) health of each party;

"5) length of marriage;

"6) source or sources of their common property.

"(v) The [former] husband is active military, and barring unforeseen circumstances, he shall so be employed in the same or higher ranking [sic], position for the next seven (7) years with the United States Military; and therefore, the [former] husband hereby agrees to subtract the total of bills due, as listed in this on behalf of the [former] wife, from the total amount received pursuant to his current `LES.' (Including all supplemental pay — BAH, BAS, BAQ, Combat pay, etc ...). The remaining balance shall be equally split amongst the parties. The agreement to pay debts/bills on behalf of the [former] wife shall be deemed a property settlement and is a voluntary, knowing, and an intelligent agreement between the parties. Both parties herein acknowledge and fully understand to [sic] these provisions, and further believe it is in the best interest and welfare of both the [former] husband and [the former] wife to agree to said provisions.

"(vi) The [former] husband shall be responsible for timely payment(s) of all the [former] wife's bills/debts listed in `i' above. If applicable, the [former] wife shall provide the [former] husband with a legible copy of all bills/receipts receive[d] in regard to the aforementioned household and other bills within fourteen (14) days of receipt. Thereafter, the [former] husband shall make full payment thereof within fourteen (14) days of receipt of said bills. However, if the [former] husband directly receives said bills from the debtor [sic], he shall directly make such payments to the company and/or person to whom the debt is owed and immediately provide the [former] wife with a legible copy of the bill and proof of payment of the aforementioned bill(s). Additionally, the [former] husband shall provide the [former] wife with a copy of his military pay stub (i.e., `LES' each month), along with a list of total monthly bills paid [o]n her behalf directly or indirectly thereby demonstrating the remaining finances which the parties have agreed to split equally. The [former] husband shall pay to the [former] wife 50% of the remaining balance of his income as demonstrated on his LES by the end of the first week of each month. This shall continue for a period of seven (7) years, and shall not be modifiable unless specifically mutually agreed upon by the parties.

"(vii) This monetary obligation shall not be deemed as either periodic or rehabilitative spousal support; and thus, may not be terminable if the [former] wife remarries or co-habitats [sic] with a member of the opposite sex as defined under Alabama law."

         In March or April 2017, the former husband stopped paying the former wife amounts that she claimed he owed her under the terms of the 2011 divorce judgment, and the former wife filed in the trial court a complaint seeking to have the former husband held in contempt and seeking enforcement of several provisions of the 2011 divorce judgment. The former husband answered the former wife's complaint,

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contending, among other things, that the former wife had concealed certain facts at the time of the execution of the divorce agreement. The former husband also sought a modification of the 2011 divorce judgment, based upon the former wife's remarriage in 2013, to terminate the payments due to her under paragraph (2)(B) of the divorce agreement, which he characterized as support and maintenance payments.

         At trial, the former husband contended that the trial court could "relieve a fraud in the formation of a divorce," asserting, essentially, that a part of his answer to the former wife's complaint had been a "defensive" Rule 60(b), Ala. R. Civ. P., motion requesting an order setting aside the 2011 divorce judgment based on the former wife's alleged misrepresentation about her relationship with another man at the time of the execution of the divorce agreement and the entry of the 2011 divorce judgment. Because the former husband contended that he had discovered the former wife's alleged fraud in early 2017, he argued that he had two years from that date to seek to set aside the divorce judgment. See Spindlow v. Spindlow, 512 So.2d 918, 920 (Ala.Civ.App. 1987) (explaining that Ala. Code 1975, § 6-2-3, applies to permit the extension of the three-year limitations period for bringing an independent action under Rule 60(b) on the ground of fraud for up to two years after the discovery of the fraud). In addition, the former husband, who had only recently retired from active duty in the United States Army at the time of the trial, asserted that 50 U.S.C. § 3936(a), a part of the Servicemembers' Civil Relief Act, codified at 50 U.S.C. § 3901 et seq., tolled any limitations period under Rule 60(b) until he was no longer an active-duty servicemember, thus permitting him to bring his Rule 60(b) claim regardless of the expiration of any limitations period.

         After the conclusion of the trial, the trial court entered a judgment that, among other things, found the former husband in contempt of certain provisions of the 2011 divorce judgment and ordered him to pay certain sums to the former wife. The trial court also denied the former husband's request to set aside the 2011 divorce judgment on the ground of fraud. The trial court specifically found that the former husband had not filed a Rule 60(b) motion and that, if the statement regarding fraud in his answer could be construed as a Rule 60(b) motion, the motion was untimely. In addition, the trial court rejected the application of § 3936(a), stating that the former husband had not been deployed at all times during the years between the entry of the 2011 divorce judgment and the commencement of the former wife's 2017 contempt action. The judgment further concluded that paragraph (2)(B) of the divorce agreement incorporated into the 2011 divorce judgment was a property settlement and not an award of periodic alimony and therefore that the former husband's obligations under that paragraph could not be terminated based on the former wife's remarriage. After his postjudgment motion on those issues was denied, the former husband timely appealed the judgment.[1]

         On appeal, the former husband asserts two main arguments. He first contends that the monetary obligations set out in paragraph (2)(B) of the divorce agreement are, in fact, periodic alimony and not a property settlement or alimony in gross.

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          He next argues that the trial court erred in concluding both that his Rule 60(b) claim was untimely and that § 3936(a) did not prevent the running of the limitations period for the filing of a Rule 60(b) motion.

         We first address contention in the dissenting opinion that the divorce agreement was an integrated bargain. The former wife never asserted in the trial court that the divorce agreement was an integrated bargain, and the divorce agreement, which favors the former wife, does not contain language indicating that "the amount of alimony to be paid for support and maintenance has been established by the parties by taking into account the property settlement features of the agreement," DuValle v. DuValle, 348 So.2d 1067');">348 So.2d 1067, 1069 (Ala.Civ.App. 1977), or that the parties were effecting a final, "`full and complete,'" or "`permanent'" settling of their claims against each other, DuValle, 348 So.2d at 1070 (quoting other cases). The parties had little in the way of property, and they divided that which they did have almost equally. In DuValle, we stated that, before a court could determine, as a matter of law, that a settlement agreement was an integrated bargain, "a ... pronounced intent to settle all claims of property rights and rights of maintenance and support is required" and must appear in the language of the agreement. DuValle, 348 So.2d at 1070. When it is not entirely clear from the language of the agreement that it is an integrated bargain, and if the agreement is ambiguous, parol evidence regarding the parties' intent in negotiating the agreement is required in order to determine if the agreement is an integrated bargain. See DuValle, 348 So.2d at 1071.

         However, because neither party raised the issue whether the divorce agreement was an integrated bargain in the trial court, the testimony concerning the negotiation of the divorce agreement is quite limited. As the dissent notes, the former wife testified that the former husband had agreed to pay her over time; however, she further testified that the parties had no assets significant enough to permit the former husband to pay her "a lump sum compensory [sic] to the amount of time [the parties] had been married." The testimony of the former wife regarding her desiring a lump sum of money as part of the divorce agreement and the former husband's inability to pay it other than over time is not evidence supporting a conclusion that the parties negotiated an integrated bargain; if it were, all settlement agreements would be integrated bargains, and that is not the law. See Gignilliat v. Gignilliat, 723 So.2d 90, 92 (Ala.Civ.App. 1998) (noting that "[m]erely because the amount of alimony was established at the same time the division of property and debts was agreed upon does not, in itself, show that the parties related alimony to the property division" and recognizing that "`severable combination' agreements also establish alimony and property rights"). Nothing in the record supports the conclusion that "the amount of alimony to be paid for support and maintenance has been established by the parties by taking into account the property settlement features of the agreement." DuValle, 348 So.2d at 1069. Thus, we cannot, as does the dissent, conclude that the divorce agreement was, in fact, an integrated bargain, and we will consider the arguments raised by the former husband.

         We have often been tasked with determining whether an award to a spouse is periodic alimony or alimony in gross. See, e.g., Hood v. Hood, 76 So.3d 824, 831 (Ala.Civ.App. 2011); Daniel v. Daniel, 841 So.2d 1246, 1250 (Ala.Civ.App. 2002); Singleton v. Harp, 689 So.2d 880, 882 (Ala.Civ.App. 1996); Laminack v. Laminack, 675 So.2d 479, 482 (Ala.Civ.App. 1996);

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and Boley v. Boley, 589 So.2d 1297, 1299 (Ala.Civ.App. 1991). Although the label placed on an award may be considered in determining what type of alimony has been awarded, see, e.g., Boley, 589 So.2d at 1299, "[t]he substance of the award takes precedence over its label." Cheek v. Cheek, 500 So.2d 17, 19 (Ala.Civ.App. 1986). Furthermore, "[t]he source of payment and its purpose are of prime importance." Lacey v. Ward, 634 So.2d 1013, 1015 (Ala.Civ.App. 1994). Thus, an appellate court considering the type of alimony awarded in a divorce agreement or judgment must examine the substance of the award under the principles governing both types of alimony.

"Our supreme court has explained the difference between periodic alimony and alimony in gross. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Alimony in gross is considered `compensation for the [recipient spouse's] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple's jointly owned assets is not practicable.' Hager v. Hager, 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award `must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.' Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App. 1986). It must also be payable out of the present estate of the paying spouse as that estate exists at the time of the divorce. Hager v. Hager, 293 Ala. at 55, 299 So.2d at 750. In other words, alimony in gross is a form of property settlement. Hager v. Hager, 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award is generally not modifiable. Id.

"Periodic alimony, on the other hand, `is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].' Hager v. Hager, 293 Ala. at 55, 299 So.2d at 750. Its purpose ... `is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage.' O'Neal v. O'Neal, 678 So.2d 161, 165 (Ala.Civ.App. 1996) (emphasis added). Periodic alimony is modifiable based upon changes in the parties' financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App. 1999). The paying spouse's duty to pay periodic alimony may be terminated by petition and proof that the recipient spouse has remarried or is cohabiting with a member of the opposite sex. Ala. Code 1975, § 30-2-55."

Daniel v. Daniel, 841 So.2d 1246, 1250 (Ala.Civ.App. 2002).

         The divorce agreement clearly characterizes the monthly payments of the former wife's expenses and the award to her of 50% of the former husband's remaining military pay as a "property settlement" and specifically states that the former husband's obligations under paragraph (2)(B) are not to be considered to be periodic or rehabilitative alimony. In addition, the divorce agreement plainly states that the former wife's cohabitation or remarriage would not affect the former wife's right to receive the payments required under paragraph (2)(B). The divorce agreement further states that the former ...

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