Dunn v. Dunn

• Decision Date: 31 December 2008
• Docket Number: 2070591.
• Citation: 12 So.3d 704
• Parties: Anthony Wayne DUNN v. Cynthia A. DUNN.
• Court: Alabama Court of Civil Appeals

12 So.3d 704

Anthony Wayne DUNN v. Cynthia A. DUNN.

2070591.

Court of Civil Appeals of Alabama.

December 31, 2008.

Charles A. Langley of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appellant.

Clatus Junkin and Charles E. Harrison of Junkin, Pearson, Harrison & Junkin, LLC, Tuscaloosa, for appellee.

THOMPSON, Presiding Judge.

This is the second time these parties have been before this court. In Dunn v. Dunn, 972 So.2d 810, 811-12 (Ala.Civ.App. 2007) ("Dunn v. Dunn I"), this court set forth the procedural history of the parties' divorce action as follows:

"Anthony Wayne Dunn (`the father') sued Cynthia A. Dunn (`the mother') for a divorce and sought a division of the parties' property and an award of custody of the parties' two minor children. The mother answered and counterclaimed, seeking, among other things, an award of custody of the children. On August 24, 2005, the trial court entered an order divorcing the parties and reserving all other issues for a later determination. A guardian ad litem was appointed to represent the children.

"On January 3, 2006, the trial court entered an order in which it, among other things, awarded each party custody of one of the two children, waived child support, and fashioned a visitation schedule. In that January 3, 2006, order, the trial court addressed and divided some, but not all, of the marital property. Accordingly, the January 3, 2006, order did not constitute a final judgment. See Blankenship v. Blankenship, 963 So.2d 112 (Ala.Civ.App.2007) (a divorce order that did not divide the marital property or marital debt was not sufficiently final to support an appeal); and Grubbs v. Grubbs, 729 So.2d 346, 347 (Ala.Civ.App.1999) (concluding that an order that failed to divide all the parties' marital property was nonfinal). The father filed a purported postjudgment motion on February 1, 2006. However, `[a] true postjudgment motion filed pursuant to Rule 59(e)[, Ala. R. Civ. P.,] may only be made in reference to a final order or judgment. Rule 59(e); Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003); see also Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999).' First Southern Bank v. O'Brien, 931 So.2d 50, 52 n. 3 (Ala.Civ.App.2005).

"On May 18, 2006, the trial court entered a final judgment in which it fully addressed the issue of a property division and disposed of the remaining issues pending between the parties. We note that the father erroneously asserts that the May 18, 2006, judgment was a nullity because, he contends, it was entered outside the 90 days allowed by Rule 59.1, Ala. R. Civ. P., which sets forth time limits for ruling on a valid postjudgment motion. We conclude, however, that the May 18, 2006, judgment constituted the final judgment in this matter. The father filed his notice of appeal on June 6, 2006, and, therefore, the appeal was taken from a final judgment and was timely filed. See Rule 4(a)(1), Ala. R.App. P. (an appeal must be filed within 42 days of the entry of a final judgment).¹

"^1. Because the father asserted that the May 18, 2006, judgment was a nullity, the arguments in his brief to this court address only the January 3, 2006, order. We address the father's appeal as if the arguments in his brief were asserted with regard to the May 18, 2006, final judgment."

In Dunn v. Dunn I, supra, this court affirmed the custody and property-division provisions of the trial court's divorce judgment.

Thereafter, on October 12, 2007, Cynthia A. Dunn ("the wife") filed a motion to interplead funds and a motion to enforce the trial court's divorce judgment. The wife paid $28,976.80 into the court; that amount represented the proceeds from the sale of the parties' marital home. In her October 12, 2007, motion to enforce the divorce judgment, the wife alleged that a dispute had arisen between the parties regarding the manner in which the trial courts January 3, 2006, and May 18, 2006, order which were part of the final divorce judgment, provided for the disbursement of the proceeds from the sale of the marital home. The wife set forth an argument supporting her position in that dispute. On November 20, 2007, Anthony Wayne Dunn ("the husband") filed a motion for a judgment on the pleadings, arguing that his interpretation of the divorce judgment supported that motion. The wife filed an opposition to the arguments the husband had asserted in his motion for a judgment on the pleadings, and the husband responded to that opposition.

With regard to the division of the parties' property, the divorce judgment ordered, among other things, that the husband pay the wife $12,272.34, representing her portion of his interest in a limited-liability company ("the LLC"), from the proceeds of the sale of the marital home. The trial court's divorce judgment also ordered that the proceeds from the sale of the marital home be used to repay the parties' marital debt. In this action, the parties dispute whether the proceeds from the sale of the marital home should first be applied to pay the wife her interest in the LLC or whether the proceeds from the sale of the marital home should first be applied to the repayment of marital debt. The confusion arises from the different treatment of those issues in the January 3, 2006, order and the May 18, 2006, order and from this court's characterization of the property division, which did not address whether the interest in the LLC awarded to the wife was to be paid from the proceeds of the marital home. See Dunn v. Dunn I, 972 So.2d at 816-17.

The trial court's January 3, 2006, order in the divorce action provided, in relevant part:

"This Court has previously ordered that the marital home be turned over to a licensed real estate broker. Said real estate broker shall have six (6) months within which to sell the home. In the event that the home is not sold within the six month period, the Clerk is hereby directed to sell the home at public action after advertising said property for a period of three consecutive weeks in a newspaper of general circulation in Fayette County. The [husband] shall be responsible for making the mortgage payments on the marital home until such time as the home is sold.

"Be it further ORDERED that the [husband] shall pay to the [wife] one-half of his one-third interest of the equity in the [LLC] from his portion of the sale of the marital home. If there is not enough equity in the marital home to accomplish this, the [husband] shall have ninety (90) days within which to pay said sum to the [wife]. The Court hereby calculates the [husband's] one-third interest as Three Hundred Thirty-Four Thousand Dollars ($334,000) less the Two Hundred Sixty Thousand Three Hundred Sixty-six Dollars ($260,366), leaving an excess of Ninety Nine Thousand Six Hundred Thirty-four Dollars ($99,634). Therefore, [the husband]'s one third interest would be Thirty-three Thousand Two Hundred Eleven and 33/100 Dollars ($33,211.33) and one-half of said sums which the [husband] is Ordered to pay to the [wife] would be Sixteen Thousand Six Hundred Five and 67/100 Dollars ($16,605.67).

"It is further ORDERED, ADJUDGED and DECREED that the [wife] is awarded the time share property owned by the parties which is located in New Orleans, Louisiana, and that the [husband] shall execute whatever documents necessary to transfer all right, title and interest over to the [wife]."

The trial court's May 18, 2006, order, which resolved the issues that remained pending in the divorce action, provided, in relevant part:

"The Court entered a Final Order on [January 3, 2006]. The [father] filed a Motion for a New Trial or in the Alternative to Alter, Amend or Vacate Judgment. The Court having considered the Motion and the argument of counsel finds the Motion should be granted in part and denied in part, it is THEREFORE, ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

"1. The Court finds that the [husband] has a one-third interest in [the] LLC. The Court hereby calculates the [husband's] interest as follows: The property owned by [the] LLC was appraised at Three Hundred Thirty Four Thousand Dollars ($334,000) less the debt owed of Two Hundred Sixty Thousand Three Hundred Sixty-Six Dollars ($260,366) leaving an excess of Seventy Three Thousand Six Hundred Thirty-Four Dollars ($73,634). Therefore, the [husband's] one-third interest in [the] LLC is Twenty Four Thousand Five Hundred Forty Four and 67/100 Dollars ($24,544.67). The [wife's] interest in [the] LLC being Twelve Thousand Two Hundred Seventy Two and 34/100 Dollars ($12,272.34).

"The Court finds that the testimony at trial indicated the parties own a condominium in New Orleans Louisiana, that has a value of Fifteen Thousand Dollars ($15,000).

"The [husband] is awarded all right title and interest in [the] LLC and the [wife] is divested of the same. The [wife] is awarded the time share property owned by the parties which is located in New Orleans, Louisiana. The [husband] is divested of all right title and interest in the condominium in New Orleans, Louisiana, and shall execute whatever documents necessary to transfer all right, title and interest to the [wife].

"2. The Court finds that the parties have marital debt consisting of a note and mortgage at the Citizens Bank of Fayette on the marital home, credit card debt, and a personal loan at the Citizens Bank. The [husband] has made all the payments on the marital debts since the parties' separation in May 2004. The [husband] is ordered to continue to make payments on the parties' marital debt until the marital home is sold.

"3. Upon the sale of the marital home, the proceeds will be applied first to the costs associated with the sale of the marital home, the debt owed on the marital home and then the remaining marital debt of the parties. If the proceeds from the sale of the marital home are not sufficient to pay the marital debt, the [husband] is ordered to pay the remainder of the marital debt and to...