McCreless v. Valentin

• Decision Date: 08 February 2013
• Docket Number: 2110363.
• Citation: 121 So.3d 999
• Parties: Shonika MCCRELESS v. Steven VALENTIN.
• Court: Alabama Court of Civil Appeals

121 So.3d 999

Shonika MCCRELESS

v.Steven VALENTIN.

2110363.

Court of Civil Appeals of Alabama.

Nov. 30, 2012.

Rehearing Denied Feb. 8, 2013.

Sharon Doviet, Huntsville, for appellant.

Fulton S. Hamilton, Huntsville, for appellee.

THOMAS, Judge.

Shonika McCreless and Steven Valentin were married on July 5, 1997; there is one child of the marriage. The Morgan Circuit Court entered a judgment divorcing the parties on July 28, 2005 (“the divorce judgment”). According to the parties' appellate briefs, the parties' written settlement agreement regarding the division of the marital assets and debts and child custody and support was incorporated into the divorce judgment.¹ The divorce judgment did not include a specific award of spousal support to either party.

Valentin was required to pay McCreless's student loan in the amount of $300 per month. The $300–a–month student-loan award was within a seven item list in a paragraph with the following header: “[Valentin] shall be solely responsible for and [McCreless] shall be held harmless on the following debts.” McCreless was required to pay any amount over $300–a–month on her student loan in a paragraph with the following header: “[McCreless] shall be solely responsible for and [Valentin] shall be held harmless on the following debts.” The parties did not appeal the divorce judgment.

The divorce judgment was modified three times before the September 27, 2011, modification (“the 2011 modification”) that is the subject of this appeal. On September 22, 2006, the circuit court modified the divorce judgment (“the 2006 modification”) and included the statement that Valentin's “[c]ourt ordered spousal support in the sum of $300 per month is not modified.” The divorce judgment had referred to a judgment amount of $300 per month twice. Valentin was ordered to pay $300 per month toward McCreless's automobile lease until April 2008 as well as the $300–a–month student-loan award; neither award was referred to as an award of spousal support in the divorce judgment. The parties did not appeal the 2006 modification. McCreless remarried in February 2007.

The divorce judgment was again modified on February 17, 2009 (“the 2009 modification”), and in the 2009 modification the circuit court specifically noted that Valentin's obligation to pay the $300–a–month student-loan award was not subject to a modification because the award was a “property settlement and not periodic alimony.” The parties did not appeal the 2009 modification. The divorce judgment was modified for a third time on May 17, 2010, but that modification is not relevant to the issues on appeal.

At some point in 2011 McCreless filed a fourth petition for modification. ² Valentin answered the petition and filed a cross-claim on July 1, 2011, in which he alleged, among other things, that McCreless had borrowed additional money on her student-loan account after the divorce judgment had been entered. A trial was set for August 28, 2011. On that date, no testimony was taken; the parties offered stipulations of fact and documentary evidence to the circuit court on the two issues upon which they had not reached an agreement—the amount of monthly child support owed by Valentin and whether Valentin remained obligated to pay the $300–a–month student-loan award.

The 2011 modification, among other things, modified Valentin's child-support obligation because it determined that McCreless was “capable of earning $3,333 per month,” although she had asserted that she earned only $774 per month. It also found that Valentin's obligation to pay the $300–a–month student-loan award had “automatically terminated” when McCreless remarried in February 2007; therefore, the trial court stated that the 2009 modification that had “reclassified” the $300–a–month student-loan award as a property settlement was “of no force and effect.”

On October 26, 2011, McCreless filed a motion to alter, amend, or vacate the circuit court's judgment, asserting that the circuit court had erred in its determination that the $300–a–month student-loan award was an award of periodic alimony. The exact words in her postjudgment motion were: “The Order declares an obligation set out in the original divorce to be periodic alimony instead of a property settlement. [McCreless] avers this payment should correctly be called a property settlement and would request a hearing on this matter.” She argued that Valentin had not appealed the 2009 modification that had determined that the $300–a–month student-loan award was a property settlement and that the $300–a–month student-loan award meets the requirements of a property settlement. She further contended that the circuit court had failed to calculate the arrearage that, she says, Valentin owed to her because of his failure to make some of the payments on the student loan between the time of the divorce and her remarriage. Finally, she contended that the circuit court had erred by imputing income to her and in its calculation of Valentin's child-support obligation. She requested an amendment of the entire judgment “either upon this motion or after setting this matter for a hearing.” Her motion was denied without a hearing on October 28, 2011.

McCreless timely appealed to this court on December 7, 2011. On appeal she contends that the circuit court erred in its refusal to grant a hearing on her postjudgmentmotion regarding the calculation of the child-support award and the termination of Valentin's obligation to pay the $300–a–month student-loan award.

“At the outset, we note that the usual presumptions of correctness applied to the trial court's findings in ore tenus cases are not applicable here. Hacker v. Carlisle, 388 So.2d 947, 950 (Ala.1980). We review the evidence presented in the record before us without any presumption of correctness, due to the trial judge's having taken no oral testimony. Ingram v. Pollock, 557 So.2d 1199 (Ala.1989); Bownes v. Winston County, 481 So.2d 362, 364 (Ala.1985) (‘[w]here the evidence is stipulated, and no testimony is presented orally before the trial court, this Court will review without any presumption in favor of the trial court's findings and sit in judgment on the evidence’); Ex parte British Steel Corp., 426 So.2d 409, 414 (Ala.1982); Hacker v. Carlisle, supra (‘This case was tried without a jury on stipulations and briefs of the parties and primarily documentary evidence. No testimony of any witness was admitted into evidence on any material matter. In such a situation, the appellate court sits in judgment on the evidence’) (emphasis original); see also Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975); McCulloch v. Roberts, 292 Ala. 451, 454, 296 So.2d 163 (1974) (‘[t]his is in effect the negative expression of the ore tenus rule’); Sheehan v. Liberty Mutual Fire Ins. Co., 288 Ala. 137, 258 So.2d 719 (1972); Kennedy v. State Dept. of Pensions & Security, 277 Ala. 5, 166 So.2d 736 (1964); Adams v. Logan, 260 Ala. 346, 70 So.2d 786 (1954); Redwine v. Jackson, 254 Ala. 564, 569, 49 So.2d 115 (1950); 5 Am. Jur. 2d Appeal and Error, § 825 at 267 (1962). Thus, we must review the evidence in this case without any presumption in favor of the trial court's ruling.”

Phillips v. Knight, 559 So.2d 564, 567 (Ala.1990).

McCreless filed a timely postjudgment motion in which she made a specific request for a hearing on the issue whether the $300–a–month student-loan award was periodic alimony or a property settlement and a general request for a hearing on all issues raised in her postjudgment motion, which included her contentions that the circuit court had erred by imputing income to her and in calculating the child-support award. She argues that Rule 59(g), Ala. R. Civ. P., required the circuit court to hold a hearing to allow her an opportunity to be heard before it could rule on her postjudgment motion.

“Rule 59(g) provides that posttrial motions ‘remain pending until ruled upon by the court (subject to the provisions of Rule 59.1), but shall not be ruled upon until the parties have had opportunity to be heard thereon.’ The failure to hold a hearing on a posttrial motion is not always reversible error, however. Our supreme court has stated:

“ ‘ “[I]f a party requests a hearing on its motion for a new trial, the court must grant the request.” Ex parte Evans, 875 So.2d 297, 299–300 (Ala.2003) (citing Rule 59(g), Ala. R. Civ. P., and Walls v. Bank of Prattville, 554 So.2d 381, 382 (Ala.1989)). Although it is error for the trial court not to grant such a hearing, this error is not necessarily reversible error. “This Court has established, however, that the denial of a postjudgment motion without a hearing thereon is harmless error, where (1) there is ... no probable merit in the grounds asserted in the motion, or (2) the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.” Historic Blakely Auth. v. Williams, 675 So.2d 350, 352 (Ala.1995) (citing Greene v. Thompson, 554 So.2d 376 (Ala.1989)).’

“Chism v. Jefferson County, 954 So.2d 1058, 1086 (Ala.2006).”

Cunningham v. Edwards, 25 So.3d 475, 477 (Ala.Civ.App.2009). We agree with McCreless that the denial of her postjudgment motion without a hearing was error. The question becomes whether the error is reversible error. Therefore, we must determine whether there exists probable merit to McCreless's arguments or whether this court can resolve the issues adversely to McCreless as a matter of law.

McCreless argues that “nothing introduced into evidence would justify [imputation of income] as though [McCreless] was intentionally underemployed.” The circuit court had before it the following conflicting documentary evidence: (1) McCreless's signed income affidavit in which she claimed to earn a monthly gross income of $774, (2) Madison City Schools' personnel-file documents indicating that McCreless was a...