Byrd v. Byrd

• Court: Alabama Court of Civil Appeals
• Writing for the Court: THOMAS, Judge.
• Citation: Byrd v. Byrd, 217 So.3d 885 (Ala. Civ. App. 2016)
• Decision Date: 01 July 2016
• Docket Number: 2150124.
• Parties: Charles Crawford BYRD v. Frances B. BYRD.

217 So.3d 885

Charles Crawford BYRD

v.Frances B. BYRD.

2150124.

Court of Civil Appeals of Alabama.

July 1, 2016.

Rehearing Denied Aug. 19, 2016.

Jeffery C. Duffey, Montgomery, for appellant.

John Olszewski and Floyd Minor of Minor & Olszewski, L.L.C., Montgomery, for appellee.

THOMAS, Judge.

Charles "Sim" Crawford Byrd ("the former husband") appeals from orders of the Montgomery Circuit Court denying his requests for relief, under Rule 60(b)(1) and (6), Ala. R. Civ. P., from an October 30, 2014, judgment entered by the circuit court, denying his petition to modify his periodic-alimony obligation to Frances B. Byrd ("the former wife"), and finding him in contempt of the judgment entered by the circuit court on October 30, 2014. We affirm.

Background

In October 2000, the circuit court entered a divorce judgment that incorporated an agreement reached by the parties. The record indicates that, among other things, the circuit court's divorce judgment ordered the former husband to pay $6,000 per month in periodic alimony and to pay 35% of his "net annual bonus" to the former wife. In May 2014, the former husband petitioned the circuit court to modify his periodic-alimony obligation, and the former wife counterclaimed, alleging that he was in contempt for failing to comply with the divorce judgment.

In his petition, the former husband alleged, among other things, that a material change in circumstances had occurred and that he was no longer financially able to pay his periodic alimony as ordered. Specifically, he alleged that he had reached 68 years of age, that he had been remarried "for many years," and that his current wife was suffering from an aggressive form of cancer that required chemotherapy treatment. He also alleged that he had been "forced" to retire in December 2013, that he had been working as a "consultant" for his former employer since that time, that his compensation had been reduced by 60%, and that he would be unemployed beginning January 1, 2015.

On October 30, 2014, the circuit court entered a judgment that incorporated an agreement that the parties had reached through mediation.¹ Among other things, the former husband agreed to pay $350,000 to the former wife to settle his periodic-alimony arrearage. The mediated agreement indicated that that amount at least partially represented the former husband's failure to pay 35% of his annual bonuses to the former wife as ordered by the divorce judgment.

The former husband agreed to pay the $350,000 as follows: $90,000 within 14 days of the execution of the mediated agreement;² $30,000 on or before January 30, 2015; $130,000 on or before January 30, 2016; and $83,000 on or before January 30, 2017. The parties agreed that the former husband would pay the remaining $17,000 from a "MetLife account" within 14 days of the execution of the mediated agreement.

The former husband agreed to pay to the former wife periodic alimony in the amount of $4,823 per month beginning on October 1, 2014;³ $4,000 per month beginning on February 1, 2016, provided he timely made his $130,000 alimony-arrearage payment due on January 30, 2016; and $3,500 per month beginning on February 1, 2017, provided he timely made his $83,000 alimony-arrearage payment due on January 30, 2017. In the event that the former husband paid the agreed-upon arrearage amount in full before the deadlines prescribed above, the parties agreed that his monthly alimony obligation would then be reduced to $3,500.

On January 14, 2015, the former husband petitioned the circuit court to modify its October 30, 2014, judgment. As grounds for the requested modification, the former husband alleged, among other things:

"5. That[,] due to material changed conditions that existed both prior to the filing of the May 13, 2014, Petition to Modify and subsequent to the October 30, 2014, order, the former husband does not have the ability to pay the alimony or other obligations [and t]hat the alimony and other obligations required of the former husband are excessive and place too heavy a burden on the former husband. The former husband is now retired, is 69 years old, and at this time only has Social Security income. The former husband is seeking ways for additional income but as of the filing of this petition/motion has no guarantee of same. The former husband is having to borrow money to pay the alimony and obligations but cannot continue to do so, and cannot continue to pay the alimony and other obligations.

"....

"6. In the alternative, the former husband seeks relief from the mediated agreement that was incorporated into an Order by this Honorable Court on October 30, 2014. The former husband seeks this relief pursuant to Rule 60(b)(1), A[la]. R. Civ. P., for mistake, inadvertence or excusable neglect and/or Rule 60(b)(6), A[la]. R. Civ. P., for any other reason justifying relief from the operation of the judgment.

"7. When the former husband signed the mediated agreement he was under mental and economic distress and duress. The former husband signed the agreement under the mistaken impression that he could comply with the terms when in fact it was an impossibility for him to comply. The terms of the mediated agreement result in an extreme hardship to the former husband and places him in an impossible position to comply. The mediated agreement is unjust and unconscionable."

The former wife answered the former husband's petition and counterclaimed, asking the circuit court to find him in contempt for failing to comply with its October 30, 2014, judgment. The former wife later filed an amended counterclaim, detailing the specific amounts that the former husband had allegedly failed to pay, and the former husband later answered the former wife's counterclaim and amended counterclaim, denying the allegations made therein and asserting as an affirmative defense the allegations made in his modification petition.

After discovery, and upon a "Joint Motion to Bifurcate,"⁴ the circuit court continued its hearing on the former husband's modification petition pending a hearing on, and disposition of, the Rule 60(b) request for relief that he had sought in the alternative. In July 2015, the former wife filed a second amended counterclaim for contempt, alleging, among other things, that she had been unable to afford sufficient food or pay certain medical expenses as a result of the former husband's failure to pay his periodic alimony. She also provided an updated calculation of the monthly amounts that the former husband had allegedly failed to pay.

On July 19, 2015, the former husband answered the former wife's second amended counterclaim, alleging in pertinent part:

"4.... In further defense[,] the former [h]usband states that he has paid for the former [w]ife since January 15, 2015[,] through the date of this Answer: (1) the house note for the former [w]ife for January thr[ough] July in the approximate amount of $6,739.95; the car payment for the former [w]ife from January thr[ough] July in the approximate amount of $2,618.00; (3) the MetLife Insurance premium for the former [w]ife from January thr[ough] July in the approximate amount of $3,129.00; all for an approximate total of $12,483.95.

"In addition thereto, the former [h]usband paid to the former [w]ife (1) in October 2014, the amount of $82,000 (for which the former [h]usband had to obtain $17,000 from a cash out in his retirement), (2) in October 2014, for the former [w]ife's attorney fee the amount of $25,000, and (3) in January 2015, $30,000 (for which the former [h]usband had to borrow the money).

"In summary, the former [h]usband has paid for the former [w]ife within the last 10 months about $154,483.95...."

As an "affirmative defense," the former husband alleged that he was not in contempt of the circuit court's October 30, 2014, judgment because he had not willfully refused to pay the former wife the additional amounts owed but had, instead, been financially unable to do so.

On July 20, 2015, the circuit court conducted a hearing on the Rule 60(b) request for relief asserted by the former husband. Only the former husband testified at the Rule 60(b) hearing. During the hearing, the former husband testified that he was 70 years old and that he had been remarried for approximately 16 years. He testified that, when he had entered into the mediated agreement in October 2014, he had been employed by Republic National Distributing Company ("Republic"), an alcoholic-beverage distributorship. He had worked in that industry for approximately 48 years. He had been a regional president at Republic but had begun working as a consultant in 2014. He testified that his employment with Republic had ended in December 2014.

At the time of his retirement in 2014, his annual salary had been $150,000. He testified that, in the four or five years preceding 2014, his annual salary had been $225,000. He also testified that he had received bonuses from Republic in some years since the entry of the divorce judgment and that the largest bonus he had received was $80,000. He testified that he had failed to pay 35% of his annual bonuses to the former wife, as required by the divorce judgment, in at least some of years since they had been divorced.

The former husband testified that, since his retirement, he had sought employment with several other companies and had entered into an agreement with Brown–Forman Distilling Company ("Brown–Forman") in February 2015 to provide consultation services as an independent contractor. The former husband testified that, under the terms of his agreement with Brown–Forman, he would receive $27,500 for six months of his services and would be reimbursed by Brown–Forman for business-related expenses.

Regarding the relief that he had requested under Rule 60(b)(1) and (6), the former husband provided the following pertinent testimony upon examination by his attorney:

"Q: ... [O]ne of the grounds you allege was that you were under mental or economic stress or duress at the time you signed

...