Davis v. Davis

• Decision Date: 21 October 2016
• Docket Number: 2150492
• Citation: 221 So.3d 474
• Parties: Willie Jerome DAVIS v. LaQuana Vonsha DAVIS
• Court: Alabama Court of Civil Appeals

221 So.3d 474

Willie Jerome DAVIS

v.LaQuana Vonsha DAVIS

2150492

Court of Civil Appeals of Alabama.

October 21, 2016

L. Scott Johnson, Jr., Montgomery, for appellant.

H. Lewis Gillis of Means Gillis Law, LLC, Montgomery, for appellee.

PER CURIAM.

Willie Jerome Davis ("the husband") appeals from a judgment of the Elmore Circuit Court ("the trial court") divorcing him from LaQuana Vonsha Davis ("the wife") and dividing the marital property.

This is the third time the parties have come before this court in connection with this divorce action. In Ex parte Davis , 169 So.3d 1038 (Ala. Civ. App. 2014) (" Davis I "), this court granted the husband's petition for a writ of mandamus to the extent he sought to supplement the record in a separate appeal with materials that, he said, indicated that he had not received notice of the final hearing in this action. Once the record was supplemented, this court considered the husband's appeal from the judgment the trial court had entered on March 6, 2014 ("the 2014 divorce judgment"), purporting to divorce the parties. In Davis v. Davis , 183 So.3d 976, 981 (Ala. Civ. App. 2015) (" Davis II "), we held that the circuit clerk's failure to notify the husband of the final hearing in the divorce action deprived the husband of his right to procedural due process and, therefore, that 2014 divorce judgment was void. Accordingly, the appeal was dismissed. In a separate, consolidated appeal, we determined that, in the divorce action, the trial court had improperly awarded Jerry Blevins, the attorney who had represented the husband in a separate criminal matter, a fee for work the attorney had done while representing the husband in the criminal matter. Davis II , 183 So.3d at 981-82. We held that the order awarding Blevins a fee was a nullity, and the appeal from that order was also dismissed. Id. at 982.

After the appeals considered in Davis II were dismissed, litigation in the divorce action continued, including the exchange of discovery. On January 6, 2016, after an ore tenus hearing,¹ the trial court entered a judgment ("the 2016 divorce judgment") divorcing the parties, awarding the marital residence to the wife, and awarding the wife all of the proceeds from the settlement check ("the settlement check") that the husband had received in what is commonly known as "the Black Farmers litigation."² No other property was mentioned in the 2016 divorce judgment. The wife was directed to pay a portion of Blevins's attorney fee, which the husband had incurred in the separate criminal matter. The husband filed a timely postjudgment motion, asserting that the trial court had erred in determining that the check was marital property. The trial court denied the postjudgment motion on February 1, 2016. The husband then filed a timely notice of appeal to this court.

On appeal, the husband contends that the trial court erred in finding that the settlement check was marital property and awarding it to the wife. The record on appeal indicates the following regarding this issue. The wife testified that the parties were married in January 2009. In his written deposition testimony, the husband said that he had initially filed a claim in the Black Farmers litigation in 1999, before the parties married. During the marriage, the husband said, he received paperwork to refile his claim. He said that he and a friend who was also a claimant went to Clanton, where people from Washington, D.C., working on behalf of the black farmers assisted all of the claimants in completing the paperwork at the same time. The husband disputed the wife's testimony that she had done research for the husband and had helped him file the claim. The husband also stated that there was no research that had had to be done.

The wife testified that the husband was arrested in May 2012. After his arrest, the wife said, the husband asked her to retain Blevins to represent him in the criminal matter. The wife testified that, at the husband's request, she had signed his name on the contract to hire Blevins and that she had also signed her name as a guarantor of payment for the legal services Blevins would provide to the husband. As mentioned, the husband was convicted in the criminal matter, and he is now serving a life sentence in a federal prison in Kentucky.

The settlement check, made payable to the husband in the amount of $50,000, was issued on October 3, 2013. The wife testified that the husband was incarcerated by that time, and she did not send him the settlement check. On December 10, 2013, the wife filed a complaint seeking a divorce from the husband. A week after filing the divorce complaint, the wife filed an emergency petition requesting permission to sign and cash the settlement check.

On March 6, 2014, the trial court entered a judgment purporting to divorce the parties. One of the provisions of the 2014 divorce judgment ordered the wife to negotiate the settlement check and to use the proceeds to "extinguish the legal services debt owed by [the husband] to ... Blevins for the legal defense provided by attorney Blevins to the [husband] in the United States District Court Criminal case which led to the [husband's] conviction and incarceration in the federal penitentiary under a life sentence." The wife testified that, pursuant to the 2014 divorce judgment, she negotiated the settlement check and paid Blevins $30,000 from the total proceeds of $50,000. The record shows that the total settlement was for $62,000; however, $12,500 of that amount was paid directly to the Internal Revenue Service for taxes.

After the husband went to prison, Blevins filed an action against the wife seeking payment of the fees he was owed for his representation of the husband in the criminal matter. On February 5, 2014, Blevins obtained a consent judgment against the wife in the amount of $41,035.44. On April 4, 2014, while the husband's motion to alter, amend, or vacate the 2014 divorce judgment was pending, Blevins filed a motion to intervene in the divorce action. In his motion, Blevins asserted that the wife had paid him only $30,000 out of the proceeds of the settlement check and had retained $20,000 for herself. The trial court granted Blevins's motion to intervene on May 28, 2014. On June 2, 2014, Blevins filed a motion for the entry of a judgment against the wife, seeking the money he said she had retained from the settlement check. On September 10, 2014, the trial court entered a final judgment in the divorce action awarding Blevins an additional $9,980.50. At the January 2016 final hearing, the wife testified that she had paid Blevins the additional $9,980.50, as ordered by the trial court, for a total payment to Blevins of $39,980.50. She also said that with the $10,019.50 remaining from the proceeds of the settlement check she had paid her attorney fee in the divorce action and bills that had been incurred during the marriage.

After the proceeds from the settlement check had been disbursed, however, this court held that the 2014 divorce judgment was void. Davis II , 183 So.3d at 981. We also held that the trial court had erred in allowing Blevins to intervene in the divorce action and that the September 10, 2014, order directing the wife to pay Blevins an additional $9,980.50 was void. Id. at 981–82.

The proceeds from the settlement check are what the husband is now claiming were wrongly awarded to the wife in the 2016 divorce judgment because, he says, the settlement check was not marital property. Specifically, the husband argues that because he filed his initial claim in the Black Farmers litigation before the parties married, and because the settlement check was not negotiated until after the entry of the 2014 divorce judgment, the proceeds of the settlement check were never used for the benefit of the parties during their marriage. Therefore, he contends, the settlement check could not be marital property.³ In other words, the husband contends that the settlement check was his separate estate. The husband also contends that the trial court repeated its error from Davis II , supra, when it "awarded" Blevins money from the settlement check.

As mentioned, after the 2014 divorce judgment was entered, and while the appeal of that judgment was pending, the wife cashed the settlement check and used a portion of the proceeds to pay Blevins the fee the husband owed him for his representation of the husband in the criminal matter. The wife testified that she also used a portion of the proceeds to pay other bills that had accrued during the marriage.

Rule 8(a), Ala. R. App. P., provides that an appellant "shall not be entitled to a stay of execution of the judgment pending appeal (except as provided in Rule 62(e), Ala. R. Civ. P.) unless the appellant executes bond with good and sufficient sureties ...." See also Rule 62, Ala. R. Civ. P. The notice of appeal that the husband filed regarding the 2014 divorce judgment shows that the husband did not file a supersedeas bond or request a stay of execution of the 2014 divorce judgment. "[A]n appeal does not ordinarily supersede the judgment in the absence of a supersedeas bond." St. Regis Paper Co. v. Kerlin , 476 So.2d 64, 66 (Ala. 1985) (citing Moore v. LeFlore , 288 Ala. 315, 260 So.2d 585 (1972) ).

"The purpose of requiring a supersedeas bond is to preserve the status quo pending the appeal. Ex parte Spriggs Enterprises, Inc. , 376 So.2d 1088 (Ala. 1979). When one appeals without posting a supersedeas bond, the appellee's right to enforce the judgment is not suspended during the appeal, and, whatever measures are necessary for the execution of the judgment, it is the duty of the trial court to pursue them on application of the party in interest.

Ex parte Dekle , 278 Ala. 307, [309,] 178 So.2d 85[, 86] (1965)."

Baker v. Bennett , 660 So.2d 980, 982 (Ala. 1995). The posting of a supersedeas bond stays execution of the judgment and secures the status quo for an appellant, thereby avoiding the delay and expense...