Mealing v. Mealing (In re Mealing.), 2120973.

• Decision Date: 25 October 2013
• Docket Number: 2120973.
• Citation: 142 So.3d 720
• Parties: Ex parte Norma Phillips MEALING. (In re Norma Phillips Mealing v. Eugene Mealing, Jr.).
• Court: Alabama Court of Civil Appeals

142 So.3d 720

Ex parte Norma Phillips MEALING.(In re Norma Phillips Mealing

v.Eugene Mealing, Jr.).

2120973.

Court of Civil Appeals of Alabama.

Oct. 25, 2013.

Vickie L. Lawson of Lawson & Associates, PC, Birmingham, for petitioner.

Katheree Hughes, Jr., Birmingham, for respondent.

THOMAS, Judge.

On March 14, 2013, Norma Phillips Mealing (“the wife”) filed a complaint seeking an uncontested divorce from Eugene Mealing, Jr. (“the husband”). The wife also filed her testimonial affidavit and a settlement agreement executed by her and the husband. On March 26, 2013, the husband filed an answer to the wife's complaint and a waiver, in which he admitted the allegations set out in the divorce complaint, waived further service of filings related to the divorce action, and requested that the trial court adopt the settlement agreement. The husband also filed an acknowledgment of representation,indicating that he understood that the wife's attorney did not represent him but authorizing that attorney to prepare the husband's answer and waiver. All the filed documents contained electronic signatures.

On May 7, 2013, the trial court entered a judgment of divorce incorporating the parties' settlement agreement. On June 7, 2013, the husband filed what he styled as a motion to alter, amend, or vacate the divorce judgment. In that motion, the husband asserted that the wife's attorney had advised him on issues including alimony, division of retirement benefits, child custody, and child support. The motion further complained that the wife's attorney had “orchestrated” the parties' settlement agreement so that it favored the wife by awarding her alimony, by awarding her a portion of his retirement benefits but awarding her all of her retirement benefits, by relieving her of the obligation to pay child support despite the fact that the husband was the primary custodian of the parties' children, and by awarding each parent the right to claim one of the parties' two children for income-tax purposes. He also alleged that he had told the wife's attorney that he desired to withdraw his consent to the agreement and that she had told him it was too late to do so because the agreement had already been submitted to the court. The husband supported his motion with his affidavit testimony.

The trial court set the husband's motion for a hearing to be held on July 8, 2013. After that hearing and on that same day, the trial court entered an order granting the husband's motion without stating its reasoning. However, based on an August 9, 2013, order subsequently entered by the trial court, it is apparent that the trial court determined that the copy of the settlement agreement filed with the complaint was insufficient and could not support the divorce judgment because it contained electronic signatures of the husband and the wife. That ground was not advanced by the husband in his motion, and, based on statements by the husband's counsel contained in the transcript of a hearing conducted on August 9, 2013, it was not advanced by the husband at the July 8, 2013, hearing on his motion.

The wife filed a motion seeking reconsideration of the trial court's July 8, 2013, order granting the husband's motion. She also filed with the trial court copies of all the divorce filings containing the handwritten signatures of the parties. In her motion, the wife first pointed out that the husband's motion had indicated by its title that it sought relief pursuant to Rule 59(e), Ala. R. Civ. P. However, because the motion was filed more than 30 days after the entry of the judgment of divorce, the wife argued, the husband's motion was untimely. SeeRule 59(e) (requiring that motions seeking to alter, amend, or vacate a judgment be filed within 30 days of the entry of that judgment). The wife also argued that the filing of a copy of the settlement agreement containing electronic signatures did not void the agreement, and she specifically cited Rule 30(G), Ala. R. Jud. Admin.,¹ and Rule 11(a), Ala. R. Civ. P.,² as authority providing that electronic signatures are acceptable signatures on court documents.

The husband filed a response in opposition to the wife's motion seeking reconsideration of the July 8, 2013, order. The husband stated that his motion had been based on Rule 60, Ala. R. Civ. P., which he characterized as “giv [ing] a judge latitude to grant relief from a judgment after 30 days if the judge deems it necessary and proper.” ³ Further, the husband asserted that the judge had the power to grant relief from a void judgment at any time. He stated that the trial-court judge had “specifically stated that ‘she [had] signed the final judgment, but had she known that there was not a signed agreement by the parties in the file, she would not have done so.” Finally, the husband noted that the trial court had “stated that it was setting aside the judgment on its own, not on the allegations made by the [husband] in his pleadings.”

The trial court held a hearing on the wife's motion on August 9, 2013. A transcript of that hearing is an exhibit to the wife's petition. After the hearing and on that same day, the trial court entered an order denying the wife's motion and explaining the basis for setting aside the May 7, 2013, divorce judgment. The trial court stated:

“That the [husband], upon seeking representation by adequate counsel, and notification to opposing counsel that he had obtained representation, did notify counsel for the [wife] before the Final Judgment of Divorce was entered by this Honorable Court that he did not wish to proceed with the agreement entered into as a self represented litigant because there were issues included in the Settlement Agreement filed March 14, 2013[,] that he did not agree with.

“This Court seeks an opportunity to render equitable judgment regarding the matter, and now that both parties are adequately represented, this Court feels that proceedings to render said equitable judgment can begin.

“An issue that seriously concerns this court is the use of electronic signatures in the original Settlement Agreement filed by [the wife's] Counsel on March 14, 2013. [The wife's] attorney of record used an electronic signature for both her client and the opposing party, who was unrepresented by counsel at the time. [The wife's] counsel cites Rule 30(G) of the Alabama Rules of Judicial Administration stating that an electronic signature is sufficient for any signature required on a motion, affidavit, or any other pleading. It is this Court's interpretation that while Rule 30(G), [Ala. R. Jud. Admin.,] does state that the use of an electronic signature does serve as a sufficient signature, Rule 30(G) is referring to attorney's signatures that are required by Rule 11[ (a) ] of the Alabama Rules of Civil Procedure, and when Rule 30(G), [Ala. R. Jud. Admin.,] is used to circumvent or defeat the purpose of an actual signature pursuant to Rule 11[ (a) ], [Ala. R. Civ. P.], it may be stricken by the Court as sham and false. It is this Court's opinion that an electronic signature of a self-represented litigant could be attached to a document without the knowledge of such a document or the content therein or used in a coercive manner.

“Further, this Court takes issue with [the wife's] counsel also using an electronic signature for the Notary Public. There was no way for this court to verify that the signatures on the original settlement Agreement filed on March 14, 2013[,] were authentic or were actually witnessed as the parties' and the Notary Public's signatures are all electronic signatures. Counsel for the [wife] has since remedied this by filing an amended Settlement Agreement that was actually signed by the parties on July 15, 2013.⁴

“In addition to the issue of the Notary Public's electronic signatures, the Court questions the decision for the [wife's] attorney of record to notarize all of the above mentioned signatures including her client's by using an electronic signature when all signatures provided on the original Settlement Agreement filed on March 14, 2013, were electronic.”

(Emphasis in original.)

The wife timely filed her petition for the writ of mandamus on August 19, 2013.⁵ She argues that the trial court lacked jurisdiction to act on the husband's motion because, she says, that motion was a Rule 59(e) motion filed more than 30 days after entry of the divorce judgment and because, she says, it was not, as the husband argued before the trial court at the August 9, 2013, hearing, a Rule 60(b) motion. She further argues that the fact that the settlement agreement filed with the trial court and incorporated into the divorce judgment contained electronic signatures does not void the divorce judgment.

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte K.N.L., 872 So.2d 868, 870 (Ala.Civ.App.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)).

The trial court entered the divorce judgment on May 7, 2013. The husband filed his motion seeking to have the divorce judgment set aside on June 7, 2013—31 days after the entry of the judgment. Thus, the characterization of the husband's motion is vitally important to the analysis of this petition.

The wife argues that the husband's motion is a Rule 59 motion. The motion seeks to have the trial court set aside the divorce judgment because the husband had not sought independent legal counsel before signing the settlement agreement, because, the husband asserted, the wife's attorney either had not advised him of his legal rights or had misrepresented his rights, and because the husband had since learned that certain aspects of the settlement agreement favored the wife; thus, the...