Johnson v. Johnson

• Decision Date: 14 August 2015
• Docket Number: 2140332.
• Citation: 191 So.3d 164
• Parties: Gina JOHNSON. v. Cary Casey JOHNSON.
• Court: Alabama Court of Civil Appeals

191 So.3d 164

Gina JOHNSON.

v.Cary Casey JOHNSON.

2140332.

Court of Civil Appeals of Alabama.

Aug. 14, 2015.

Stan Brobston of Brobston & Brobston, Bessemer, for appellant.

Anthony B. Johnson of Johnson Law Firm, LLC, Centreville, for appellee.

THOMAS, Judge.

Gina Johnson (“the wife”) and Cary Casey Johnson (“the husband”) were married on April 25, 1997. There are three children of the marriage (“the children”). On June 20, 2012, the wife filed a complaint in the Bibb Circuit Court seeking a divorce from the husband. She requested a division of the assets and debts of the marriage, an award of custody of the children, and awards of child support, of alimony, and of attorney fees. That same day the wife filed a motion seeking an award of pendente lite support in which she asserted that she had been “a homemaker for the past seven years and [was] not currently employed.” She requested an award of exclusive possession of the marital residence, pendente lite custody of the children, and pendente lite awards of child support, of alimony, and of attorney fees. The husband filed an answer and a counterclaim in which he requested a divorce from the wife, a division of the assets and debts of the marriage, an award of joint custody of the children, and awards of child support and of attorney fees.

After a pendente lite hearing on August 17, 2012, the circuit court entered a pendente lite order on September 11, 2012. Among other things, the circuit court awarded the parties joint legal custody; however, the circuit court awarded the wife primary physical custody of the children, and it awarded the husband visitation. It ordered the husband to pay $1,069.28 in monthly child support. Additionally, the order reads: “The [husband] agrees to pay the [wife] $436.00 a month for spousal support, pendente lite.”

The record includes various documents that were attached to motions. One document indicates that the husband was employed by Sims Bark, Inc.; however, another document indicates that he was terminated from that employment on December 10, 2012. On January 10, 2013, the husband filed a motion seeking a reduction of his pendente lite child-support and alimony obligations. No order on the husband's motion appears in the record. On September 12, 2013, the wife filed a motion in which she asserted that the husband had secured other employment and that he was earning “substantially more money”; the wife requested an increase in pendente lite support. She attached documents indicating that, at some point before April 6, 2013, the date of his first paycheck, the husband was hired by Burkes Mechanical, Inc. (“Burkes”).

A hearing was held, and, on November 1, 2013, the circuit court entered an order in which it noted that the wife had failed to appear; however, the circuit court determined from the parties' documentary submissions that the husband had unilaterally reduced his “support payments” to $170 per month for an undisclosed period and had withdrawn $56,823.44 from a retirement account on January 7, 2013. The circuit court increased the husband's child-support obligation to $1,180.96 per month and stated: “This Court specifically reserves jurisdiction to adjust the amount of support that the [husband] would owe to the wife for all the months he was working and paying a significantly reduced amount of support at the time of the [entry of the divorce judgment].”

On July 14, 2014, the parties participated in mediation. The husband's attorney prepared the parties' settlement agreement (“the settlement agreement”), and, on July 22, 2014, the parties and their respective attorneys executed the settlement agreement, which is included in the record. In pertinent part, the settlement agreement obligates the husband to pay child support in the monthly amount of $1,180.96 and to pay alimony in gross in the weekly amount of $100 for three years. It does not award the wife periodic alimony, and it does not include any language regarding the alleged pendente lite child-support and alimony arrearages.

On August 11, 2014, the wife filed a handwritten motion seeking an order setting a hearing and alleging that the husband had failed to pay pendente lite alimony and that the pendente lite child-support payments had been routinely late. She further claimed that the husband had falsely asserted that he had used the funds that he had withdrawn from the retirement account to pay marital debts. On August 19, 2014, the husband filed a motion seeking the enforcement of the parties' settlement agreement. A hearing date was set.

A transcript of an October 10, 2014, hearing is included in the record on appeal. The judge, the parties, the parties' mediator, and the parties' attorneys participated in a discussion, which, at times, continued off the record.¹ In essence, the wife attempted to convince the circuit court, as she had in her handwritten motion, that the settlement agreement does not include all the terms that had been mediated and that the mediator had pressured her into signing the settlement agreement despite the fact that it does not address the alleged arrearages. The mediator denied that she had pressured the wife into accepting the settlement agreement, and the wife conceded that she had read and signed the settlement agreement. The circuit court specifically questioned the parties, the mediator, and the parties' attorneys regarding whether the issue of the alleged arrearages had been a subject of the mediation. The circuit-court judge noted that “everybody” had nodded their heads in agreement that the alleged arrearages were discussed; however, the record includes the wife's oral reply: “But not the back alimony.” The mediator immediately requested to go “off record,” and, when the hearing resumed on the record, the circuit court concluded that the terms of the settlement agreement left it with “no choice.” The circuit-court judge stated orally: “I'm going to go forth and see about issuing a decree based on this agreement. You know we're kinda tied with that. And so that's what we'll do. All right. Yeah, my hands are kind of locked on that.” The circuit court indicated that, if arrearages existed, the wife should have addressed the arrearages in the settlement agreement or, in the alternative, by filing a motion seeking a finding of contempt before the mediation occurred.

On October 24, 2014, the circuit court entered a judgment in which it concluded that the execution of the settlement agreement was voluntary and that the parties had mutually agreed to its terms. The judgment contains the circuit court's findings that no duress, coercion, or mutual mistake had occurred in the negotiation of the settlement agreement and that there existed no fraud, collusion, accident, surprise, or other ground for setting aside the settlement agreement. The circuit court divorced the parties and, pertinent to this appeal, specifically concluded that no arrearages existed. It deemed the pendente lite child support and alimony to be current.²

On November 21, 2014, the wife filed a postjudgment motion in which she argued, among other things, that the October 24, 2014, judgment does not accurately reflect the terms to which she had agreed in the settlement agreement, that the husband was in arrears in pendente lite child support in the amount of $25,662.72 and in pendente lite alimony in the amount of $9,600, and that the circuit court had erred by “eliciting testimony from the mediator, both on and off the record,” in violation of Rule 11(c), Alabama Civil Court Mediation Rules. After a hearing at which the circuit court heard arguments of counsel, it entered an order denying the wife's postjudgment motion on December 16, 2014.

On January 26, 2015, the wife filed a notice of appeal in this court seeking our review of whether the circuit court violated Rule 11 of the Alabama Civil Court Mediation Rules³ or by failing to award pendente lite child-support and alimony arrearages in the final judgment.

“ ‘In an ore tenus proceeding before the trial court, “[t]he trial court is in the best position to observe the demeanor of witnesses and to assess their credibility.” Yellow Freight Sys., Inc. v. Green, 612 So.2d 1209, 1211 (Ala.Civ.App.1992). It was the duty of the trial court, as the trier of fact, to resolve any conflicts in the evidence. Harden v. Harden, 418 So.2d 159, 161 (Ala.Civ.App.1982).’

“Petrey v. Petrey, 989 So.2d 1128, 1134 (Ala.Civ.App.2008).... ‘ “[T]his court is not permitted to reweigh the evidence on appeal or to substitute its judgment for that of the trial court.” ’

Schiesz v. Schiesz, 941 So.2d 279, 289 (Ala.Civ.App.2006) (quoting Sellers v. Sellers, 893 So.2d 456, 461 (Ala.Civ.App.2004) ).”

Williams v. Harris, 80 So.3d 273, 279 (Ala.Civ.App.2011).

The wife argues that the circuit court's inquiry into the events that took place at the mediation violated the Alabama Civil Court Mediation Rules—specifically the confidentiality requirements of Rule 11(c). Indeed, the Comment to Amendment to Rule 11 Effective June 26, 2002, provides: “Confidentiality is the backbone of mediation. The freedom to discuss issues privately with a mediator and in joint session with another party, without fear of disclosure outside the mediation, allows parties to safely explore potential alternative solutions to the dispute.” However, Rule 11(b)(1) provides the following exception to prohibited disclosures: “A mediator or a party to a mediation may disclose information otherwise prohibited from disclosure under this section when the mediator and the parties to the mediation all agree to the disclosure.” Because no one, including the wife, objected to the circuit court's inquiry into the “facts elicited” at mediation at any point during the October 10, 2014, hearing, we cannot conclude that the circuit court's inquiry violated the protections provided by Rule 11.

Next we consider whether the circuit court erred by failing to determine what, if any, pendente lite child-support...