Dubose v. Dubose, 2120007.

• Citation: 132 So.3d 17
• Decision Date: 07 June 2013
• Docket Number: 2120007.
• Parties: Stuart C. DUBOSE v. Allison T. DUBOSE.
• Court: Alabama Court of Civil Appeals

132 So.3d 17

Stuart C. DUBOSE

v.Allison T. DUBOSE.

2120007.

Court of Civil Appeals of Alabama.

June 7, 2013.

James M. Gaines and Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.

Submitted on appellant's brief only.

On Application for Rehearing

PER CURIAM.

This court's opinion of March 22, 2013, is withdrawn, and the following is substituted therefor.

Stuart C. Dubose (“the husband”) appeals from a judgment divorcing him from Allison T. Dubose (“the wife”). Among other things, the judgment also divided the parties' marital property and ordered the husband to pay child support. The judgment in this case comprises three documents: an August 4, 2009, order divorcing the parties; a March 5, 2010, order dividing the marital property; and an August 17, 2012, order determining the husband's child-support obligation.¹

In this appeal, the husband contends that the August 4, 2009, order divorcing the parties violated Alabama law because it was based only on the stipulation of the parties, “without any proof of the grounds for the divorce ever being presented or considered” by the trial court. Specifically, the husband says, the August 4, 2009, order violated § 30–2–3, Ala.Code 1975, which “forbid[s] divorce by consent.” Penny A. Davis & Robert Earl McCurley, Jr., Alabama Divorce, Alimony & Child Custody Hornbook § 9–8 at 116 (4th ed.2005).

The record indicates the following information relevant to a disposition of this issue. On March 25, 2008, the wife filed a complaint for a divorce. As grounds for the divorce, the wife alleged incompatibility of temperament that was irremediable and irreconcilable and that there had been an irretrievable breakdown of the marriage. During the pendency of the action, the trial court awarded the wife possession of the marital residence, custody of the children, pendente lite alimony and child support, and an attorney fee. The wife was also awarded a temporary restraining order against the husband. The husband is a former circuit judge from Clarke County, and a number of circuit judges recused themselves from this matter. A Perry County district judge was appointed to preside over this case. A special master also was appointed to inventory and value the property in the marital estate. Discovery was propounded, but, as the trial court noted in an order dated July 9, 2009, discovery issues “plagued this case from the get go and continue to this date.” In the July 9, 2009, order, which the trial court stated was entered after a telephone conference between the trial court and the parties' attorneys, the trial court ordered, among other things, that the wife and the husband “stipulate to the divorce leaving all other relative matters for trial.” One week later, on July 16, 2009, the trial court entered an order stating:

“The Court finds that for clarity of the record in the case and based upon the stipulation of the parties to being divorced through their respective legal counsel, said counsel for both parties shall file a stipulation to divorce within fourteen (14) days of this order.”

On July 18, 2009, the wife filed a stipulation to divorce in which she stated that she did “hereby completely and totally stipulate to the court granting a divorce in the above action. I am filing this statement pursuant to the court's July 16, 2009, court order.” The stipulation did not state grounds for a divorce. Likewise, on July 24, 2009, the husband's attorney filed a stipulation to divorce, stating that he had had a telephone consultation with the husband and that the husband had agreed to a stipulation to divorce. ² The stipulation stated that “the Court may enter a divorce while reserving jurisdiction to try the property and support issues.” Like the wife's stipulation, the husband's stipulation did not state grounds for a divorce.

On August 4, 2009, the trial court entered an order divorcing the parties. In the order, the trial court stated that “[t]his cause, coming on to be heard upon the pleadings and the stipulation of [the wife] and [the husband], this cause was submitted for final judgment.” The trial court then went on to divorce the parties on the ground of incompatibility of temperament. The order also provided that the trial court was retaining jurisdiction as to all other matters at issue and that it intended

“to allow evidence at trial, if this matter is not decided by default prior to then, as to child custody, child support, permanent alimony, attorneys fees, and other matters as stated in the [wife's] complaint and the assets of the parties. This court shall not hear evidence as to the grounds for divorce as this is being decreed herein except as that evidence which may be relevant to any remaining issues.”

As mentioned, the husband relies on § 30–2–3 as the basis for his assertion that the trial court could not properly enter a divorce judgment only on the parties' stipulations. That statute provides:

“No judgment can be entered on the confession of the parties, or either of them, or if it appear that adultery was committed by either, with the consent of the other, for the purpose of obtaining a divorce, or where both parties have committed adultery, or where there has been a condonation of adultery by the admission of the offending party to conjugal embraces after knowledge of the commission of the crime, or when the husband knew of or connived at the adultery of the wife.”

The prohibition of consensual divorces survived the legislature's enactment of “no-fault” divorces in 1971, when new statutory grounds for granting a divorce were added to the existing grounds. See§ 30–2–1, Ala.Code 1975. The new, “no-fault” grounds authorized a circuit court

“to divorce persons from the bonds of matrimony, upon a complaint filed by one of the parties ....:

“....

“(7) Upon application of either the husband or wife, when the court is satisfied from all the testimony in the case that there exists such a complete incompatibility of temperament that the parties can no longer live together [; or]

“....

“(9) Upon application of either party, when the court finds there has been an irretrievable breakdown of the marriage and that further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family.”

§ 30–2–1(a)(7) and (9).

In Phillips v. Phillips, 49 Ala.App. 514, 520–21, 274 So.2d 71, 77 (Civ.1973), this court discussed the effect of “no-fault” divorces on the prohibition of consensual divorces, stating:

“[T]he statutory ground of incompatibility does not permit the court to dissolve a marriage merely because its termination is desired by one or both parties, or that, conversely, when incompatibility of temperament is shown, a divorce may not be denied solely because the defending spouse voices opposition to its granting.

“A contrary holding would make incompatibility dependent in its application upon an agreement or a stipulation between the parties, and thus furnish a vehicle for a consensual divorce which the statute did not intend to sanction and which would be contrary to Tit. 34, § 26, Code of Alabama 1940 [a predecessor statute to § 30–2–3]. The condition or state of affairs constituting incompatibilitymust exist as a fact and proof thereof must be submitted by the proponent.”

As Professors Davis and McCurley noted in their treatise on divorce, “[t]he statutory ground for divorce of incompatibility does not sanction consensual divorce, since this would be contrary to the intent of the Alabama statute forbidding divorce by consent.” Alabama Divorce, Alimony & Child Custody Hornbook § 9–8 at 116, citing § 30–2–3 and Phillips, supra.

In Wright v. Wright, 55 Ala.App. 112, 313 So.2d 540 (Civ.1975), the plaintiff sought a divorce on the ground of incompatibility. The case was submitted to the trial court on a stipulation of facts, including the stipulation that “ ‘a complete incompatibility of temperament exists between the parties.’ ” 55 Ala.App. at 113, 313 So.2d at 541. The judgment, which granted a divorce on the ground of incompatibility, stated “that the case was submitted without testimony on the pleadings and the stipulation of facts by agreement of the parties and their attorneys.” Id.

This court reversed the trial court's judgment, explaining:

“Title 34, Section 26 of the Code of Alabama (1940) [a predecessor statute to § 30–2–3] prohibits the securing of a divorce upon the confession of the parties. The establishment of grounds for a divorce by testimony or evidence other than by agreement is jurisdictional to the granting of the divorce and cannot be waived by the parties. Meares v. Meares, 256 Ala. 596, 56 So.2d 661 [ (1952) ];Johns v. Johns, 49 Ala.App. 317, 271 So.2d 514 [ (Civ.1973) ]; Helms v. Helms, 50 Ala.App. 453, 280 So.2d 159 [ (Civ.1973) ].”

Wright, 55 Ala.App. at 114, 313 So.2d at 541–42.

This court reached a similar conclusion in Johns v. Johns, 49 Ala.App. 317, 271 So.2d 514 (Civ.1973). In that case, as in the case at bar, the evidentiary hearings before the court were limited to matters of support...