R.B.S. v. K.M.S.

• Decision Date: 28 May 2010
• Docket Number: 2090027.
• Citation: 58 So.3d 795
• Parties: R.B.S.v.K.M.S.
• Court: Alabama Court of Civil Appeals

58 So.3d 795

R.B.S.

v.K.M.S.

2090027.

Court of Civil Appeals of Alabama.

May 28, 2010.Certiorari Denied Sept. 10, 2010

Alabama Supreme Court 1091259. R.B.S., pro se.Thomas M. Galloway, Jr., of Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, Mobile, for appellee.THOMAS, Judge.

R.B.S. (“the former wife”) appeals from the judgment of the Baldwin Circuit Court enforcing a settlement agreement between the former wife and K.M.S. (“the former husband”). We affirm.

Facts and Procedural History

In 2002, the former husband petitioned the trial court for a divorce. The former husband also filed a motion for temporary custody of the parties' two minor children (“the children”) and for a restraining order preventing the former wife from having any contact with the former husband or the children. The trial court granted the former husband's motion for temporary custody and entered a temporary restraining order against the former wife. The former wife then moved the trial court for temporary custody of the children, child support, and pendente lite alimony; the former wife also moved the trial court to grant her exclusive possession of the parties' Ono Island home. The former wife then answered the former husband's complaint and counterclaimed, requesting custody of the children, child support, an equitable division of the parties' assets and debts, alimony, and an attorney fee. The trial court entered an order that, among other things, granted the parties joint legal custody of the children, with the former husband having temporary physical custody of the younger child and the parties having joint physical custody of the older child, modified the temporary restraining order insofar as it conflicted with the trial court's order, and ordered the former husband to pay to wife $1,000 per month in pendente lite alimony.

In October 2004, the parties entered into a settlement agreement. The settlement agreement was read into the record in open court. The settlement agreement contained several provisions relating to the parties' Ono Island home and an Internal Revenue Service (“IRS”) tax lien (“the tax lien”) on the Ono Island home. The settlement agreement provided that the former wife would receive all right, title, and interest in the Ono Island home and that the former husband would waive all claims to the home. The settlement agreement also provided that the tax lien on the Ono Island home had been incurred solely by the former husband, that the former husband would cooperate with the former wife's efforts to discharge the tax lien, and that the former husband would agree to be solely responsible for the tax lien and to indemnify and hold the former wife harmless from the tax lien. The settlement agreement further provided that the “parties stipulate and agree that this settlement agreement is primarily based upon the discharge of the [tax] lien against the Ono [Island home.] If said discharge is not accomplished the parties are not bound by the terms of this agreement.” In return for the Ono Island home, the former wife gave up any rights to alimony, the former husband's retirement accounts, and any other property. The parties agreed that the agreement, as read into the record, accurately reflected the settlement reached between the parties.

In 2004, the former husband arranged to refinance the Ono Island home so that he could use the proceeds to pay off the tax lien. When the wife arrived for the closing, she noticed that she was also listed as an obligor on the mortgage; the former husband should have been solely obligated to repay the mortgage. The former wife refused to sign the mortgage note and left the closing. Richard Shields, the attorney who was then representing the former husband, testified that the mortgage had been intended to be only in the former husband's name and that the former wife's name was removed from the mortgage documents. As a result of the former's wife's refusal to sign the documents at the closing, the refinancing of the Ono Island home was never completed. The IRS then began collection efforts on the tax lien.

The former husband alleged that in August 2008 the parties agreed to settle the tax lien in a federal-court action. The tax-lien settlement provided that the Ono Island home would be sold and the proceeds from the sale would be used to satisfy the tax lien. The federal court, in December 2008, granted the former husband's motion to enforce the tax-lien settlement and, in January 2009, ordered that the Ono Island home be sold.

The former wife moved the trial court for an increase in pendente lite alimony on October 27, 2008; the former wife also moved the trial court to compel discovery. On March 11, 2009, the former husband moved the trial court to enforce the settlement agreement and to enter a judgment divorcing the parties. The former husband alleged in his motion that the settlement agreement had been contingent on the discharge of the tax lien on the Ono Island home, that an agreement with the IRS relating to the tax lien had been reached, and that the tax lien had now been resolved.

On August 12, 2009, the trial court held a hearing on the former husband's motion to enforce the settlement agreement and the wife's motions to compel discovery and for increased pendente lite alimony. The parties agreed that if the trial court granted the former husband's motion to enforce the settlement agreement, then the former wife's motions would both become moot, as the case would be resolved. Following the hearing, the trial court entered a judgment on August 12, 2009, enforcing the settlement agreement and divorcing the parties. The trial court determined in its judgment that the former wife had failed to cooperate with the former husband's efforts to discharge the tax lien; therefore, the former wife had been at fault for the former husband's failure to discharge the tax lien. As a result, the trial court determined that, even though the former wife had lost the benefit she was to receive under the settlement agreement, the former wife could not use the former husband's failure to discharge the tax lien to prevent the enforcement of the settlement agreement. The former wife subsequently filed a postjudgment motion, pursuant to Rule 59(e), Ala. R. Civ. P. The trial court denied the former wife's postjudgment motion, and the former wife appealed to this court.

Analysis

The former wife first argues that the trial court erred when it enforced the settlement agreement because, she argues, the enforcement of the settlement agreement was contingent upon the former husband's discharge of the tax lien on the parties' Ono Island home. The settlement agreement provided that “[t]he parties stipulate and agree that this settlement agreement is primarily based upon the discharge of the IRS lien against the Ono [Island] property. If said discharge is not accomplished the parties are not bound by the terms of this agreement.” However, the trial court did not determine that the discharge of the tax lien was not a condition precedent to the enforcement of the settlement agreement. Instead, in the trial court's August 19, 2009, judgment, the trial court determined that the former husband had met his obligation to discharge the tax lien by arranging to refinance the Ono Island home and to then satisfy the tax lien with the proceeds. The trial court further determined that the former wife refused to cooperate with the former husband's attempt to discharge the tax lien. The trial court then stated:

“The Court is of the opinion that a party to a settlement agreement cannot evade the terms of the settlement agreement by refusing to cooperate in accomplishing the terms of the settlement. While [the former wife] may have lost the benefit of the bargain, she did so by her own actions and not through any fault of [the former husband].”

Thus, even assuming that the former wife is correct that the discharge of the tax lien is a condition precedent to the enforcement of the settlement agreement, to prevail on appeal the former wife would still need to challenge either the trial court's conclusion that the wife was responsible for the nonoccurrence of the condition precedent or the trial court's conclusion that the former wife's responsibility for the nonoccurrence of the condition precedent precluded her from preventing the enforcement of the settlement agreement.

The former wife does not make any argument concerning the correctness of the trial court's legal conclusion that the former wife's fault for the nonoccurrence of the condition precedent precluded her from preventing the enforcement of the settlement agreement. “ ‘An argument not made on appeal is abandoned or waived.’ ” Muhammad v. Ford, 986 So.2d 1158, 1165 (Ala.2007) (quoting Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003)). Because the former wife has waived any legal argument on this issue, we need not further consider this issue.

The only challenge the former wife makes to the trial court's factual finding that the former wife was at fault for the former husband's failure to discharge the tax lien is a statement, without the support of any authority, that the settlement agreement did not require her to refinance the Ono Island home or to sign a mortgage. Because the wife's argument is not supported by relevant authority, it does not meet the requirements of Rule 28(a)(10), Ala. R.App. P.

“Inapplicable general propositions are not supporting authority, and an appellate court has no duty to perform a litigant's legal research. Legal Systems, Inc. v. Hoover, 619 So.2d 930 (Ala.Civ.App.1993); Lockett v. A.L. Sandlin Lumber Co., 588 So.2d 889 (Ala.Civ.App.1991); and Moats v. Moats, 585 So.2d 1386 (Ala.Civ.App.1991). Similarly, appellate courts do not, ‘based on undelineated propositions, create legal arguments for the appellant.’ McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992). This court will address...