Bowen v. Bowen

• Decision Date: 17 July 2009
• Docket Number: 2070983.
• Citation: 28 So.3d 9
• Parties: Stanley BOWEN v. Kathy D. BOWEN.
• Court: Alabama Court of Civil Appeals

28 So.3d 9

Stanley BOWEN v. Kathy D. BOWEN.

2070983.

Court of Civil Appeals of Alabama.

July 17, 2009.

Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellant.

Jack Floyd of Floyd Law Firm, LLC, Gadsden, for appellee.

THOMAS, Judge.

Stanley Bowen ("the former husband") and Kathy D. Bowen ("the former wife") were divorced in 2002. Some time after the divorce judgment was entered, the former husband was injured at work and he fell behind in his child-support and alimony payments, in part because moneys being deducted from his disability payments by his employer were not being forwarded to the former wife. In February 2003, the former wife sought to have the former husband held in contempt for various reasons; her action was docketed as case number DR-01-1172.01. State Dep't of Human Res. ex rel. Bowen v. Bowen, 958 So.2d 901, 902 (Ala.Civ.App.2006). The State Department of Human Resources ("DHR") later filed an action on behalf of the former wife seeking to have the former husband held in contempt for his failure to pay child support; that action was docketed as case number DR-01-1172.02; however, DHR's action was later dismissed without prejudice. Bowen, 958 So.2d at 903. After the trial court entered a judgment on the former wife's contempt action, the former husband filed a postjudgment motion. Id. at 902. The former husband attempted to interject a custody-modification issue in the pending contempt action; however, the former wife objected to his attempt, and the former husband then filed a third action, in May 2005, which was docketed as case number DR-01-1172.03, in which he sought custody of the older child of the parties, Conner. Id. The parties reached an agreement regarding custody, and the trial court entered a judgment in case number DR-01-1172.03 reflecting that agreement. Id. After considering the former husband's postjudgment motion, the trial court also entered a judgment in October 2005 in case number DR-01-1172.01 determining that, after considering the lump-sum payments delivered to the former wife on behalf of the former husband by both his employer and the Social Security Administration, the former husband had overpaid his obligations to the former wife and his children. Id.

Because DHR had applied the moneys turned over by the former husband's employer first to his child-support arrearage, the Social Security disability benefits awarded to the children were more than sufficient to pay the former husband's remaining child-support arrearage. However, that left the former husband owing the former wife an alimony arrearage, despite the fact that the money had actually been paid by the former husband. To adjust the equities of the parties, the trial court, in its October 2005 judgment, credited the money overpaid to the former wife against the former husband's future alimony obligation. The judgment read, in pertinent part, as follows:

"3. The [former wife] should receive $7,666.00 from Social Security. Provided she receives this money, the [former husband] shall receive a credit of $2,778.18 towards the balance of his alimony arrearage. The reminder $4,887.82 shall be credited towards future alimony payments at $100.00 per month. Once this credit expires the [former husband] shall continue the $100.00 month alimony payments subject to the provisions of the original Divorce Decree.

"4. The [former husband] shall receive a $1,000.00 credit towards the rifle which he was awarded in the original decree. He may apply this credit towards future alimony payments."

DHR appealed the October 2005 judgment; however, because it was no longer a party, we dismissed the appeal. Bowen, 958 So.2d at 903. The former wife did not appeal the October 2005 judgment.

In September 2006, the former husband filed a petition seeking postminority educational support for Conner. The former husband further sought a modification of his periodic-alimony obligation and to have the former wife held in contempt for failing to return certain items to which the former husband was entitled under the divorce judgment. The former wife answered the former husband's complaint and counterpetitioned for an increase in periodic alimony; for an award of $30,000, representing the value of the Chevrolet Tahoe automobile that the former husband had been required to pay the indebtedness on in the divorce judgment but that had been forfeited in the former husband's bankruptcy proceedings; and to have the provision of the October 2005 judgment awarding the former husband a credit against his future periodic-alimony obligation declared void. The former husband opposed the former wife's petition.

After a trial, at which the former husband, the former wife, and Conner testified, the trial court entered a judgment on May 8, 2008, holding the former wife in contempt as requested, eliminating the former husband's credit against future alimony payments contained in the October 2005 judgment, and denying the petition for postminority educational support for Conner; the judgment further provided that any requests that were not specifically addressed in the judgment were denied, so the trial court effectively denied the former wife's request for an increase in alimony and for a $30,000 judgment representing the value of the Chevrolet Tahoe automobile. The former husband filed a postjudgment motion, in which he argued that the trial court lacked jurisdiction to eliminate the credit awarded him in the October 2005 judgment and that the trial court had failed to consider the proper factors in denying the request for postminority educational support. After a hearing on the motion, the trial court denied the former husband's motion. The former husband appeals, arguing that the trial court erred in denying postminority educational support and in eliminating the credit against his future alimony payments provided for in the October 2005 judgment.

The portions of the May 2008 judgment pertinent to this appeal read as follows:

"3. The prospective alimony credit is hereby eliminated. [The former husband] shall recommence alimony payments of $100.00 per month beginning May of 2008.

"4. Since [the former husband] received a windfall with the full benefit of both lump sum Social Security Administration Disability checks for [the parties' children] by virtue of the previous Court's Order of October 2005, plus successfully avoided his obligation to supply adequate transportation for the [former wife] and the parties' minor child in [the former wife's] custody by bankrupting on the Tahoe debt, equity would demand that [the former husband's] request for assistance on Conner's college tuition be DENIED. Therefore, [the former husband's] request in regards to that issue is hereby DENIED."

On appeal, the former husband first challenges the trial court's denial of postminority educational support, arguing that the trial court failed to consider the proper factors in denying the request. Our supreme court authorized the imposition of postminority educational support in Ex parte Bayliss, 550 So.2d 986 (Ala. 1989). When considering an application for postminority educational support, "the trial court shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child's commitment to, and aptitude for, the requested education." Ex parte Bayliss, 550 So.2d at 987. Other factors the trial court may consider include "the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child's relationship with his parents and responsiveness to parental advice and guidance." Id. We agree with the former husband that the trial court improperly failed to consider those factors set forth in Ex parte Bayliss and focused instead on the former husband's lump-sum backpay awards resulting from his workplace injury and subsequent disability determination and the outcome of his bankruptcy proceeding to determine that postminority educational support was not warranted. We therefore reverse the trial court's denial of the former husband's request for postminority educational support for Conner and remand the cause with instructions that the court apply the proper factors in its consideration of the request on remand.

The former husband also argues that the trial court improperly eliminated the credit awarded him against his future alimony payments contained in the October 2005 judgment. Although the former wife's initial pleading did not rely on Rule 60(b), Ala. R. Civ. P., the parties argued the applicability of that rule to the trial court and continue to argue that rule on appeal. Rule 60(b) provides:

"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)[, Ala. R. Civ. P.]; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from any ...