Petrey v. Petrey
| Decision Date | 15 February 2008 |
| Docket Number | 2060489. |
| Citation | 989 So.2d 1128 |
| Parties | Marilou Generoso PETREY v. Perry PETREY. Perry Petrey v. Marilou Generoso Petrey. |
| Court | Alabama Court of Civil Appeals |
Stephen P. Johnson of Brackin, McGriff & Johnson, P.C., Foley, for appellant/cross-appellee Marilou Generoso Petrey.
Mark D. Ryan, Bay Minette, for appellee/cross-appellant Perry Petrey.
On May 17, 2006, Perry Petrey ("the husband") filed a petition for a rule nisi and to modify certain provisions of a judgment divorcing him from Marilou Generoso Petrey ("the wife"). The record on appeal does not contain copies of the June 27, 2005, divorce judgment or of a September 29, 2005, postjudgment order that altered some of the provisions of the divorce judgment. The record does set forth that part of the content of those orders that is relevant to the issues on appeal.1 For the purposes of this opinion we refer to the June 27, 2005, divorce judgment and to the September 29, 2005, postjudgment order collectively as "the divorce judgment."
The allegations in the parties' pleadings and the evidence presented at the hearing in this matter reveal the following pertinent facts. The divorce judgment, among other things, ordered the parties to sell their marital residence and, after the payment of the indebtedness on the property, to divide the proceeds of the sale evenly. The divorce judgment also required the husband to pay, in addition to the mortgage payments on the marital residence until it sold, $1,000 per month in periodic alimony, and it required the wife to transfer to the husband a business she owned that was located in the Philippines ("the business"). In addition, the husband was ordered to pay child support for at least one child born of the parties' marriage.2
In his May 17, 2006, petition, the husband alleged that the wife had not cooperated in transferring the business to him or in selling the marital residence. The husband sought to enforce the divorce judgment and to terminate his alimony and child-support obligations based on what he characterized as the wife's "contemptuous behavior."
The wife answered and asserted as an affirmative defense that the husband had failed to pay alimony as ordered in the divorce judgment and, therefore, that he came to the court with unclean hands. The wife also asserted a counterclaim in which she requested that the trial court hold the husband in contempt for failing to pay alimony and order the husband to pay the alimony for which he was in arrears. During the pendency of this matter, the husband's attorney filed a motion with the trial court requesting permission to withdraw from the husband's representation because, he stated, the husband wanted to represent himself during the rest of the trial-court proceedings. The trial court entered an order allowing the husband's attorney to withdraw.
The trial court held a hearing on the parties' claims on September 18, 2006; the husband appeared pro se at that hearing. The facts presented at the hearing are as follows. The husband testified that the wife had failed to transfer the business to him at the time of the September 18, 2006, hearing. The husband stated that the wife had instead transferred the business to the two sons sometime "before the trial." The husband never clarified whether that purported transfer had occurred before the hearing on his May 17, 2006, petition or before the divorce hearing, and no other evidence in the record indicated when that purported transfer of the business occurred. The husband testified that the wife had purposefully transferred the business to the sons so that it would be impossible for the husband to obtain it. The husband testified that, to the best of his knowledge, the business generates between $24,000 and $40,000 a year in income.
According to the wife, shortly after she was ordered to transfer the business to the husband pursuant to the divorce judgment, she signed a document ("the transfer document") that stated that she was giving the husband all "equities" in the business; the wife stated that she did not know who owned the business at the time she signed the transfer document. The wife testified that she sent the transfer document to the husband's attorney.
At one point during the September 18, 2006, hearing, the wife's attorney asked her how her sons "came to have ownership in the business," and the wife responded:
When the wife's attorney asked her to clarify what she meant by saying that her sons had "lost" the business, she responded:
Later, the husband asked the wife a series of questions as follows:
Subsequently, the trial court asked the wife whether the business had been "making between $24,000 and $40,000 a year during the marriage." The wife responded:
It appears from the record that the wife and the parties' minor daughter lived in the marital residence until two or three months before the September 18, 2006, hearing. The husband testified that the wife had allowed the house to fall into a state of disrepair. The husband admitted that he had not spent any money on maintenance for the house since he and the wife had separated.
The wife stated that Hurricane Ivan had broken some windows and had caused other damage to the marital residence. The wife testified that, at some point after the parties divorced, the air conditioner and the septic tank for the marital residence stopped functioning properly. The wife attributed the problems with the air conditioner and the septic tank to damage caused by the hurricane. However, the wife's testimony indicates that the insurance company determined that the hurricane had not caused that damage and that it had instead been caused by the age of the systems. The wife testified that she had paid to have the septic tank and the air conditioner repaired.
The husband testified that the payments on the indebtedness on the marital residence totaled approximately $1,700 per month and that he had made the payments on that indebtedness since the parties divorced. The husband admitted that he had not paid alimony to the wife as required by the divorce judgment. According to the husband, he could not afford to pay the indebtedness on the marital residence as well as the alimony payments.
The husband alleged that the wife had not been cooperating in attempting to sell the residence. He stated that the wife had refused to cooperate with the real-estate agent that initially listed the house. The wife disputed that testimony and stated that after the original listing expired she attempted to hire another agent to list the house but that the husband did not agree to listing the house with a new agent due to additional fees that the parties would incur. The husband disputed the wife's statements with regard to her attempts to list the house with a new real-estate agent.
The husband stated that he felt that both his alimony and his child-support obligations should be reduced or terminated because, he alleged, the wife had not properly transferred the business to him and because he had had to make mortgage payments on the marital residence since the entry of the divorce judgment. The husband contended that the wife had failed to cooperate in the efforts to sell the marital residence, which had resulted in his continuing obligation to make payments on the indebtedness on the residence and had prevented the parties from dividing the proceeds of the sale of the residence as provided in the divorce judgment.
On September 28, 2006, the trial court entered a final judgment in which it granted the husband's May 17, 2006, petition in part and granted the wife's counterpetition in part. The trial court did not expressly deny some of the claims the husband had asserted in his petition. However, it is clear that, based on the relief it granted, the trial court intended to dispose of all the pending claims. Therefore, we conclude that the claims not expressly mentioned in the September 28, 2006, judgment were implicitly denied. M.C. Dixon Family P'ship, LLLP v. Envision Props., LLC, 911 So.2d 711, 715 (Ala.Civ.App. 2005). Accordingly, the September 28, 2006, judgment was a final judgment that supports the parties' appeals.
The September 28, 2006, judgment reads, in pertinent part:
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