Ex parte Owens

• Decision Date: 26 May 1995
• Citation: 668 So.2d 545
• Parties: Ex parte Bobbie Jean OWENS. (Re Bobbie Jean OWENS v. Donald Wayne OWENS). 1931665.
• Court: Alabama Supreme Court

Page 545

668 So.2d 545

Ex parte Bobbie Jean OWENS.

(Re Bobbie Jean OWENS v. Donald Wayne OWENS).

1931665.

Supreme Court of Alabama.

May 26, 1995.

Petition for writ of Certiorari to the Court of Civil Appeals (AV92000710). Appeal from the Etowah Circuit Court, No. DR-87-410.01, Roy S. Moore, Judge.

Howard B. Warren of Turnbach & Warren, P.C., Gadsden, for Petitioner.

Jack Floyd and Jane V. Floyd of Floyd, Kenner, Cusimano & Roberts, Gadsden, for Respondent.

MADDOX, Justice.

The legal issue presented in this petition for a writ of certiorari relates to the power of a trial court to modify a divorce judgment that incorporated an agreement relating to the payment of periodic alimony. The trial court entered an order denying a modification of the divorce judgment, stating, "Because the divorce was by agreement, the plain and simple language of that agreement must be upheld as the final judgment of the Court.... Regarding alimony payments, the agreement plainly stated that the continuation of periodic ... alimony payments shall be at the discretion of the [husband]."

The Court of Civil Appeals affirmed the trial court's order. Owens v. Owens, 668 So.2d 543 (Ala.Civ.App.1994). We reverse and remand, because the law of Alabama provides that "[w]hen an agreement between the parties provides for the payment of periodic alimony, and this agreement is adopted by the court in its decree, the provision for periodic alimony becomes merged into the decree and thereby loses its contractual nature, at least to the extent that the court has the power to modify it when changed circumstances so justify," and that "[n]o agreement of the parties can remove the court's power to so modify the judgment." Kirkpatrick v. Smith, 500 So.2d 8, 11 (Ala.Civ.App.1986), citing Block v. Block, 281 Ala. 214, 201 So.2d 51 (1967), and Oliver v. Oliver, 431 So.2d 1271 (Ala.Civ.App.1983).

At the time of their divorce, the petitioner, Bobbie Jean Owens, and the respondent, Donald Wayne Owens, had been married for almost 30 years. They were divorced in 1987. The portion of the Owenses' agreement that was incorporated into the divorce judgment, and which is the subject of this controversy, reads as follows:

"1. The plaintiff [Donald Wayne Owens] shall pay to the defendant [Bobbie Jean Owens] the sum of $400.00 per week as alimony for a period of sixty (60) months. Said payments shall cease in the event of the defendant's remarriage, or the defendant's death, or the plaintiff's death, or should the defendant [cohabit] with another as husband and wife, whichever event should first occur. At the end of the sixty-month period, if said alimony payments have not ceased for one of the above listed reasons, the financial situation of the parties shall be re-evaluated annually thereafter to determine if alimony payments should be continued for an additional period of time over and above sixty months. Said alimony payments may be continued annually thereafter if the plaintiff should determine that the financial situation of the parties warrants a continuation of alimony payments on an annual basis thereafter."

It is apparent from a reading of the terms of the trial court's order that the trial judge agreed with Mr. Owens that he had the option of deciding whether his ex-wife's financial situation warranted further alimony after the expiration of five years. It is undisputed that Mr. Owens unilaterally ceased paying alimony after the expiration of the five-year period, even though the record indicates that when he discontinued the alimony, Mrs. Owens was earning $13,000 per year and Mr. Owens was earning over $250,000 per year.

Mrs. Owens, contending that the trial court had the power to modify the final judgment of divorce and to continue the alimony payments, petitioned the trial court for that relief. The trial court, after an ore tenus hearing on the petition, entered an order stating, in part:

"The Final Decree of Divorce dated July 20, 1987, was upon agreement by the parties. Because the divorce was by agreement, the plain and simple language of that agreement must be upheld as the final judgment of the Court.... Regarding alimony payments, the agreement plainly stated that the continuation of periodic ... alimony payments shall be at the discretion of the Plaintiff.... At this time, the Court does not find Plaintiff's decision to stop periodic alimony payments to be so unreasonable as to be unconscionable, although there is a great disparity in income between the parties."

A fair reading of this order suggests that the trial judge believed that he was bound by the terms of the agreement relating to the payment of alimony and therefore could not exercise his equity powers to modify the agreement. ¹

The wife contends that, because the agreement relating to the payment of alimony was merged into the judgment of divorce, the trial judge erred in holding that "the plain and simple language of that agreement must be upheld as the final judgment of the Court." In support of her argument, she cites Killen v. Akin, 519 So.2d 926, 930 (Ala.1988), wherein this Court stated:

"[A]ny part of [an] agreement that is merged into the judgment is subject to the equity power of the court and is no longer of a contractual nature. Oliver v. Oliver, 431 So.2d 1271, 1275 (Ala.Civ.App.1983); East v. East, [395 So.2d 78 (Ala.Civ.App.1980), cert. denied, 395 So.2d 82 (Ala.1981) ]."

We agree with the wife that the trial court abused its discretion when it determined that "the plain and simple language of that agreement must be upheld as the final judgment of the Court."

The power of a court to modify a divorce judgment that incorporates an agreement between the parties has been addressed in several cases, including Kirkpatrick v. Smith, 500 So.2d 8 (Ala.Civ.App.1986), wherein the Court of Civil Appeals stated:

"When an agreement between the parties provides for the payment of periodic alimony, and this...