Jones v. Jones (Ex parte Jones)
| Decision Date | 30 April 2021 |
| Docket Number | 2200442 |
| Parties | EX PARTE Reginald JONES (In re: Faith Jones v. Reginald Jones) |
| Court | Alabama Court of Civil Appeals |
S. Phillip Bahakel of S. Phillip Bahakel & Associates, Pelham, for petitioner.
G. John Durward, Jr., and Nancy K. Bird of Durward & Durward, Birmingham; and Katheree Hughes, Jr., Birmingham, for respondent.
Reginald Jones ("the husband") petitions this court for a writ of mandamus directing the Shelby Circuit Court ("the trial court") to enter an order vacating its February 5, 2021, order setting aside the October 15, 2020, judgment ("the divorce judgment") divorcing him from Faith Jones ("the wife") and scheduling the divorce action for trial on May 21, 2021. The husband also asks this court to direct the trial court to reinstate the divorce judgment, which incorporated the settlement agreement that the parties had reached. For the reasons set forth below, we deny the husband's petition.
The materials submitted to this court indicate the following information relevant to the disposition of the husband's petition. The husband and the wife married in June 1998; two children were born of the marriage. Both children were minors at the time the divorce judgment was entered. The parties separated in October 2015, and the wife filed a verified complaint for a divorce on November 24, 2015. During the course of the litigation, certain discovery disputes arose, and the wife filed a motion to compel discovery and a subsequent "motion for sanction." The materials before us do not demonstrate that the trial court ruled on either motion. The trial was scheduled for August 28, 2020.1 On August 27, 2020, the trial court entered an order declaring that all pending motions would be addressed at the trial. In his petition, the husband asserts that, on August 28, 2020, "in lieu of the trial," the parties reached an agreement concerning all issues in the divorce action. A single handwritten page that sets forth the agreement is included in the materials, but some of the writing has been cut off of the copy, including some signatures, and no date is visible on the document. In her answer to the petition, the wife acknowledges that the parties signed the agreement.
On September 24, 2020, the husband filed an "answer and waiver and agreement of taking testimony" in which he denied each of the allegations included in the divorce complaint, but, citing Rules 43 and 28(d), Ala. R. Civ. P., he waived the requirement that testimony be taken before the trial court. Instead, the husband agreed that testimony could be taken by affidavit and that the matter could "proceed to final judgment without further or other notice" to him. On September 25, 2020, the wife filed a document titled "testimony," in which she said that there had been an irretrievable breakdown of the marriage. She also explained:
"My husband and I have agreed on the matters of division of our property, attorney's fees and other matters that have been set forth in an agreement that both of us have signed and I ask the court to approve this agreement and make it a part of the final judgment of the divorce in this cause, should one be granted."
The wife did not advise the trial court of any outstanding issues that needed to be resolved.
A proposed divorce judgment is included in the materials, but it does not indicate who prepared it. In a postjudgment motion and in his petition to this court, the husband says that the wife's attorney prepared and submitted that proposed judgment, and the wife does not deny the assertion. On October 15, 2020, the trial court entered the divorce judgment, which, with minor exceptions not pertinent to the issue before us, is essentially identical to the proposed judgment.
The divorce judgment awarded the parties joint legal custody of the children and awarded the wife sole physical custody subject to the husband's visitation. The husband was ordered to pay $902 each month for child support, in compliance with the guidelines set forth in Rule 32, Ala. R. Jud. Admin. The divorce judgment also stated that the husband owed the wife $25,712 for "past-due child support." It ordered the husband to 2 The payments were to continue until the arrearage and the interest thereon were paid in full. Neither party was required to pay alimony to the other.
Additionally, the divorce judgment divided the parties' marital assets. The marital home was to be sold and the proceeds divided equally between the husband and the wife after certain litigation costs were paid. The judgment also provided that, "[i]f any property belonging to the [Greater Emmanuel Community Church] on August 28, 2020 (real or personal) is sold, at any time after the date of the execution of the Settlement Agreement on August 28, 2020, [the husband] shall provide to [the wife] all documentation regarding said sale." It further provided that if the husband, "or any entity other than the [Greater Emmanuel Community Church], in which the husband holds an interest, receives any proceeds from any sale of the above stated property, [the husband] shall pay to [the wife] one-half of said proceeds."
On November 13, 2020, the wife filed a motion to alter, amend, or vacate the divorce judgment, in which she asserted that, despite the terms of the parties' settlement agreement, the trial court should have awarded her the marital residence. Additionally, she protested that the trial court had not awarded her periodic alimony, although she had requested it in the divorce complaint. At the very least, she said, the trial court should have reserved the issue of periodic alimony. She also claimed that the provisions in the divorce judgment regarding the division of proceeds from the sale of property belonging to the Greater Emmanuel Community Church ("the GECC") or the husband or entity other than GECC in which the husband holds an interest were "created based on deceptions and misrepresentations" of the husband. The wife continued:
The wife attached to her postjudgment motion what she asserted was her "affidavit," with exhibits, but that "affidavit" was not notarized. In that document, the wife explained that she, the husband, and the parties' older child were the "incorporators" of GECC and that she had never been "removed as an incorporator." She said that the husband had taken it upon himself to make decisions regarding the purchase or sale of real property without consulting her and that she had "just recently learned" that the husband had transferred property from GECC without authorization from the "incorporators." She said that there were occasions "of which [she] just recently learned that the [husband] had signed her name to real property without [her] consent transferring property from the two of [them] to the church." The wife also said that all the properties in the name of GECC should be considered marital property and that, in her opinion, "any and all properties that have been transferred by the [husband] to himself or others without [her] consent was done fraudulently and should be included in the marital property prior to any final judgment." She also said that none of the properties that were in GECC's name were "used in the negotiations for a final settlement agreement." Based on those unsworn assertions, the wife said, the final judgment should be set aside.
The husband opposed the wife's postjudgment motion, arguing that the wife had agreed to the settlement reached before the trial. He pointed out that the wife's attorney had drafted the proposed judgment that incorporated the settlement agreement and that was adopted, essentially verbatim, by the trial court. On December 9, 2020, the husband filed a motion pursuant to Rule 60(a) and (b), Ala. R. Civ. P., pointing out that the pendente lite support he had been ordered to pay was spousal support and not child support and that the $25,712 award...
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