Personnel v. Personnel
Decision Date | 20 January 2017 |
Docket Number | 2150225 |
Parties | Wesley Person v. Lillian Person |
Court | Alabama Court of Civil Appeals |
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Appeal from Crenshaw Circuit Court
(DR-13-49)
On Application for Rehearing
This court's opinion issued on October 21, 2016, is withdrawn, and the following is substituted therefor.
Wesley Person ("the husband") appeals from a divorce judgment entered by the Crenshaw Circuit Court ("the trial court") to the extent that it ordered him to pay child support and alimony to Lillian Person ("the wife"). He also challenges a pendente lite order entered during the pendency of the divorce proceedings. We reverse the judgment.
On August 29, 2013, the wife filed a verified complaint seeking a divorce from the husband. In the complaint, the wife averred that she and the husband, who had been married since 1994, had separated on December 1, 2012, and were living apart. The wife further claimed that she was without sufficient funds to provide for herself and the parties' minor children and that the husband had failed to provide any financial support to her and the children during their separation. The wife requested, among other things, that the trial court enter an ex parte temporary restraining order awarding her custody of the children, $6,000 per month in child support, and $10,000 per month in alimony. On September 4, 2013, the trial court entered an order ("the pendente lite order") granting that requested relief. The wife subsequentlyserved the summons and the complaint on the husband on September 6, 2013. On April 8, 2014, the husband answered the complaint and counterclaimed for a divorce. On February 17, 2015, the wife amended her complaint, adding allegations that the husband had committed adultery.
After a trial, the trial court entered a judgment on July 31, 2015, finding that the husband had committed adultery during the parties' marriage, dividing the parties' property, ordering the husband to pay $1,000 per month in alimony, awarding the wife sole physical and legal custody of the parties' minor children, ordering the husband to pay $2,500 per month in child support, and establishing that the husband owed an arrearage of $320,000 arising from the pendente lite order. With regard to child support, the trial court specifically stated:
The trial court also stated:
On August 27, 2015, the husband filed a postjudgment motion. On October 26, 2015, the postjudgment motion was denied. On December 7, 2015, the husband filed his notice of appeal.
The evidence indicated that the parties had been married over 20 years at the time of the trial. During the marriage, the husband had played for the National Basketball Association ("the NBA") for 11 years and had earned $40 million. At the time of the trial, the parties had a Prudential Annuities Service Account valued at $2.2 million and a Polaris Platinum II Awards Annuity with an estimated value of $91,000; those accounts were awarded to the wife. The husband also had a pension through the NBA that he testified was valued at $711,000; that pension was awarded to the husband. The parties also owned multiple homes, farmland, a communitycenter, a skating rink, a bowling alley, and approximately 20 vehicles.
The evidence also indicated that the wife does not have a college degree and that she had never worked during the marriage. The evidence indicated further that the parties' income in the years leading up to the separation had been solely from their approximately $5 million in investments. The wife testified that the husband had spent over $1 million during the parties' separation. She further testified that she had heard that the husband has secret financial accounts but that she had been unable to locate any additional accounts.
Finally, there was evidence presented indicating that the husband had committed adultery. Additionally, the husband admitted that he had failed to pay any pendente lite child support or alimony for over two years during the pendency of this case.
On appeal, the husband argues that the judgment is not final because the trial court declined to provide for themanner of payment of the arrearage accruing from the pendente lite order. The trial court clearly set forth the amount of arrearage owed by the husband for pendente lite alimony and child support. Compare D.M.P.C.P. v. T.J.C., 91 So. 3d 75, 76 (Ala. Civ. App. 2012) ( ); Johnson v. Johnson, 191 So. 3d 164, 171 (Ala. Civ. App. 2015) ( ). A determination of a party's arrearage is "the equivalent of a monetary judgment for that amount." Henderson v. Henderson, 680 So. 2d 373, 374 (Ala. Civ. App. 1996). Such a judgment may be collected by "'any ... process for collection of the judgment, such as garnishment.'" State ex rel. Walker v. Walker, 58 So. 3d 823, 828 (Ala. Civ. App. 2010) (quoting Leopold v. Leopold, 955 So. 2d 1031, 1036 (Ala. Civ. App. 2006)). Therefore, we conclude that the divorce judgment is final so as to support the present appeal even though the trial court did not expressly declare the mechanism of enforcement.
The husband next argues that the $320,000 arrearage arises from a void order. Specifically, the husband contends that the trial court entered the pendente lite order establishing his interim alimony and child-support obligations in violation of Rule 65(b), Ala. R. Civ. P., thereby rendering the pendente lite order a nullity.
Ordinarily, on appeal from a final judgment of divorce, this court cannot review the merits of a pendente lite order. As we explained in Morgan v. Morgan, 183 So. 3d 945, 966 (Ala. Civ. App. 2014):
However, the husband points out that a void judgment may be attacked "at any time," Hodges v. Archer, 286 Ala. 457, 459, 241 So. 2d 324, 326 (1970), and that our supreme court has considered the validity of a pendente lite order following the entry of a final judgment, see Ex parte Williams, 474 So. 2d 707 (Ala. 1985) ( ). Based on that authority, and considering further that the final judgment includes the arrearage arising from the pendente lite order, we conclude that this court may review the pendente lite order to determine if it is void.
The record shows without dispute that the trial court did not notify the husband before entering the pendente lite order. The husband contends that the trial court could not have entered the pendente lite order ex parte without complying with Rule 65(b), Ala. R. Civ. P., which provides:
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