Kaufman v. Kaufman

• Decision Date: 02 November 2007
• Docket Number: 2060245.
• Parties: Esther M. KAUFMAN v. Charles T. KAUFMAN.
• Court: Alabama Court of Civil Appeals

22 So.3d 458

Esther M. KAUFMAN v. Charles T. KAUFMAN.

2060245.

Court of Civil Appeals of Alabama.

November 2, 2007.

Joan-Marie Kettell, Huntsville, for appellant.

J.R. Herring, Dothan, for appellee.

On Application for Rehearing.

THOMPSON, Presiding Judge.

The opinion of August 24, 2007, is withdrawn, and the following is substituted therefor.

This is the second time this matter has been before this court.

Esther M. Kaufman ("the wife") sued Charles T. Kaufman ("the husband") for a divorce. No children were born of the parties' marriage, although both parties have adult children from previous marriages. The trial court entered a judgment divorcing the parties and dividing their marital property. The wife appealed that judgment, challenging the property division and alimony award. In Kaufman v. Kaufman, 934 So.2d 1073, 1081 (Ala.Civ. App.2005) ("Kaufman I"), this court reversed the judgment of the trial court, concluding that the property division and alimony award were inequitable, and remanded the cause for the trial court to fashion an equitable property division and alimony award.¹

On remand, the trial judge who had entered the original divorce judgment recused himself, and another trial judge was appointed. The trial court then conducted an ore tenus hearing on August 21, 2006. On October 26, 2006, the trial court entered a judgment that, among other things, divided the parties' property and awarded the wife periodic alimony and alimony in gross. The wife filed a post-judgment motion, which the trial court denied. The wife timely appealed.

During the pendency of this appeal, the husband's attorney filed a suggestion of death indicating that the husband had died on May 21, 2007. We note that a final divorce judgment had been entered before the husband's death and, therefore, that this appeal was not abated by the death of the husband. Ex parte Parish, 808 So.2d 30, 33 (Ala.2001) ("[T]he common law provides that a divorce action in which no final judgment has been entered is abated by the death of a party."); and Ex parte Adams, 721 So.2d 148 (Ala.1998)(the settlement agreement was sufficiently final so as to prevent the abatement of the divorce action when the husband died before the trial court incorporated the parties' agreement into a judgment).

A recitation of the facts of this case is not necessary for the resolution of this appeal. On appeal, the wife contends that the trial court failed to comply with this court's appellate mandate in Kaufman I when it received additional ore tenus evidence at the August 21, 2006, hearing and when it considered that evidence in fashioning its October 26, 2006, judgment. We agree with the wife that precedent has established that once an appellate court has determined an issue and remanded the cause to the trial court for the entry of a judgment in compliance with its decision, the trial court, unless otherwise directed by the appellate court, must enter such a judgment based on the evidence as originally presented to it.

"It is well settled that, after remand, the trial court should comply strictly with the mandate of the appellate court by entering and implementing the appropriate judgment. See Walker v. Humana Medical Corp., 423 So.2d 891, 892 (Ala.Civ.App.1982). In Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983), we held:

"`"It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered...." The appellate court's decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence...." 5 Am.Jur.2d, Appeal & Error § 991 (1962).'"

Auerbach v. Parker, 558 So.2d 900, 902 (Ala.1989) (emphasis added).

After the trial court had entered the original divorce judgment, as well as after this court had released its opinion in Kaufman I, supra, the husband and/or his daughter disposed of certain assets or transferred amounts from the husband's accounts to certain members of the husband's family. The evidence presented at the August 21, 2006, hearing focused on the existence and location of the parties' remaining marital assets and the living expenses of the parties at the time of that hearing. The wife presented the majority of the evidence at the hearing, and the record does not indicate that either party objected to the trial court's taking additional evidence on remand. In fact, the wife represented to the trial court that the issue to be resolved was the disposition of the remaining marital assets.

"Q. [BY WIFE'S ATTORNEY]: And I'm going to show you in Plaintiff's Exhibit No. 2 under investment account. There was one account that was held in your husband's individual name; is that correct?

"[THE WIFE]: Yes.

"Q. And the statements are behind the piece of paper here on the top?

"A. Yes.

"Q. All right. And at the time of the last trial in June of 2004, this first account had a balance of $280 in it; is that correct?—$280,000 I'm sorry. See here, 6/25/04?

"A. Yes.

"Q. Where did that $280,000 come from?

"A. Mutual income. It came from our mutual income.

"[HUSBAND'S ATTORNEY]: Your Honor, may I interpose an objection? I don't recall any testimony at the first trial that indicated there was $280,000 in Mr. Kaufman's account, and I don't see any document in here that indicates that there's $280,000 in the account.

"[WIFE'S ATTORNEY]: 6/25/04.

"[HUSBAND'S ATTORNEY]: Okay.

"[WIFE'S ATTORNEY]: What I did for the Court's benefit and [the husband's attorney's] benefit was take the three at the same time and put those behind my top exhibit for the Court to justify the figures that are in that exhibit.

"THE COURT: You've got three different dates.

"[WIFE'S ATTORNEY]: Yes, sir.

The significant phases of this trial.

"[HUSBAND'S ATTORNEY]: Your Honor, the balance at the time we tried the case the first time indicated by this statement [was] $211,176.53. The balance was totaled about a month after the case was tried, after the divorce had already been entered. So we will object to her referring to the evaluation after the judgment was entered in June of, I think June 2nd of 2004.

"[WIFE'S ATTORNEY]: The documents are available for your perusal.

"THE COURT: You're objecting to?

"[HUSBAND'S ATTORNEY]: Well, I think she's misrepresenting the amount in the account, and the Judge entered the final judgment of the divorce dividing assets at that time. She's saying that there was $280,000 in Mr. Kaufman's account when the divorce was initially tried, and there was not that much in his account. There was only this that I have that is in this document. There was $280,000 in there. That was June 24th of '04. The judgment was entered June 2nd, and the same document clearly shows there was clearly $211,000 in that account.

"[WIFE'S ATTORNEY]: But, Your Honor, there's not that much in those accounts now, and we expect to present evidence as to the balances in those accounts presently. And Your Honor, it's our position that given the reversal of the initial divorce decree, monies were taken out of the account.

"THE COURT: What are we trying to do, empty our pockets and then decide where the money goes?

"[WIFE'S ATTORNEY]: Yes. The [de]pletion of the assets during the appeal included $130,000 that was withdrawn 13 days after the Court of Civil Appeals's action, was taken from her own account.

"THE COURT: We can always allow for that, yes....

"THE COURT: I've got to empty it out; is that right?

"[WIFE'S ATTORNEY]: Take what's left now and divide that up."

(Emphasis added.)

The wife contends on application for rehearing that she argued "throughout this case that the assets should be divided as they existed at the time of filing or at the time of the original divorce hearing." Although some evidence presented at the August 21, 2006, hearing reiterated or disputed some of the evidence presented at the original 2003 divorce hearing, much of the evidence presented concerned the existence and amounts of the assets remaining at the time of the August 21, 2006, hearing. She cites the following passage that is a continuation of the discussion quoted above. We note, however, that after the lunch break referenced in the following quotation, the trial resumed without any indication regarding the resolution of the argument quoted above.

"[HUSBAND'S ATTORNEY]: But, Your Honor, this document was not superseded, and while this case was on appeal, my client was free to do what he wanted to with the assets awarded to him. There was nothing filed to supersede this judgement during the time that the case was on appeal. My client was free to do whatever he wanted to with the assets awarded to him just like she did.

"[WIFE'S ATTORNEY]: I can't say that he's in contempt although, I argue that the $130,000 that was taken out was done in violation. What happened was this Court entered an order back in 2004 that froze assets, then the divorce decree came out. In '04, the divorce decree was entered which means that we're back, which is a freeze order. His daughter then went in and dissipated funds in contempt of this Court's order. She put money from that account into her own personal account and into her brother's account and now they want to say, `Well, now we don't have any money left to give to Mrs. Kaufman.' And this account, especially the one that we're talking about now that has over $200,000, it is incorrect in deciding that it was not a marital asset and in not awarding Mrs. Kaufman any portion of it.

"THE COURT: You all are just making it a whole lot more complicated than it is. I mean, you all can't agree on a date or whenever. When we submit it, it's June of 2004. Then we have an agreement.

"[HUSBAND'S ATTORNEY]: No, sir, I'm not in agreement with...