Robertson v. Robertson (Ex parte Robertson)

• Decision Date: 15 August 2014
• Docket Number: 2130276.,2130264
• Citation: 174 So.3d 970
• Parties: Ex parte Kenneth Paul ROBERTSON, Jr. (In re Donna L. Robertson v. Kenneth Paul Robertson, Jr.). Kenneth Paul Robertson, Jr. v. Donna L. Robertson.
• Court: Alabama Court of Civil Appeals

174 So.3d 970

Ex parte Kenneth Paul ROBERTSON, Jr.

(In re Donna L. Robertson

v.Kenneth Paul Robertson, Jr.).

Kenneth Paul Robertson, Jr.

v.Donna L. Robertson.

2130264

2130276.

Court of Civil Appeals of Alabama.

Aug. 15, 2014.

Rehearing Denied in case no. 2130264 Oct. 10, 2014.

Kenneth Paul Robertson, Jr., Gadsden, for petitioner/appellant Kenneth Paul Robertson, Jr.

Sara C. Semmes, Anniston, for respondent/appellee Donna L. Robertson.

Judge Laura B. Phillips, as respondent.

Opinion

THOMAS, Judge.

Kenneth Paul Robertson, Jr. (“the husband”), and Donna L. Robertson (“the wife”) were married on March 17, 1988. The parties separated on May 20, 2008, and, on November 6, 2009, the wife filed a complaint in the Etowah Circuit Court seeking, among other things, a divorce from the husband. The wife alleged that the husband had committed adultery. The husband is an attorney, and a number of circuit judges recused themselves from presiding over the case; a Calhoun County district judge was ultimately appointed to preside over the case.

A transcript of a December 11, 2009, hearing is included in the materials provided for our review.¹ The transcript demonstrates that the wife orally agreed to amend her complaint to withdraw the allegation of adultery, and, in the presence of the husband, who represented himself, the wife's attorney summarized the parties' oral agreement regarding, among other things, the division of their marital assets and debts. After the clarification of several issues, the circuit court directed the wife to prepare a written agreement, to provide the written agreement to the husband for his approval, and to submit the written agreement to the court. At the close of the hearing, the following colloquy occurred:

“THE COURT: Do you (referring to the wife) wish to put grounds [for divorce] on the record or do you wish to provide an affidavit?

“[THE WIFE'S ATTORNEY]: I wish to provide an affidavit and state irreconcilable differences.

“THE COURT: Okay, sounds good to me.

“[THE HUSBAND]: Your Honor, do we need to prove jurisdiction today?

“THE COURT: If he's (referring to the wife's attorney) going to provide an affidavit, as long as you provide all the grounds, the jurisdiction is also in the affidavit, I'm sure.”

The wife's attorney failed to file an affidavit stating the grounds for the divorce. Regardless, the circuit court entered a judgment (“the purported divorce judgment”) on February 17, 2010, in which it purported to, among other things, divorce the parties and divide their marital assets and debts. The next day the wife filed an amended complaint and withdrew her allegation that the husband had committed adultery.

On June 15, 2010, the husband filed a motion regarding the sale of the marital residence. However, on June 25, 2010, the husband filed a “notice of dismissal,” seeking to “voluntarily dismiss his claim against the [wife] pursuant to Rule 41(a)(1) [, Ala. R. Civ. P.], without prejudice” because, he alleged, he had “recently discovered that [the circuit] court lack[ed] jurisdiction and [that] the original divorce decree [was] void.” A hearing was held on August 23, 2010, at which the wife's attorney admitted that he had failed to file an affidavit providing grounds for a divorce. At that hearing the following colloquy occurred:

“THE COURT: This is actually, we did a—there's actually been a final decree of divorce that's been signed off by the parties and an order also being had. And I noted for the record that there was no—with that I was supposed to have an affidavit, and actually I thought I had taken care of it when we were at the hearing, my mistake.

“[THE HUSBAND]: Actually, Your Honor, I brought it up at the hearing that we had a jurisdictional question in the hearing. You directed [the wife's attorney] to prepare an affidavit along with the agreement, which didn't get filed, so....

“THE COURT: Well, we're going to take care of that today. We can fix it today and make it retroactive to the time of the divorce that was signed and that should take care of it, I think. So, let's see—Is that going to be a problem for anybody?

“[THE WIFE'S ATTORNEY]: No, Your Honor, I apologize. I was supposed to file that and it was just a complete oversight on my part.

“THE COURT: It's no big deal, we can clear it up, I think, quite easily. [Wife's attorney], are you ready to call your first witness?

“[THE WIFE'S ATTORNEY]: Yes, Your Honor. I call [the wife].”

The wife testified that the parties were incompatible; however, the circuit court failed to enter a written order stating the grounds for the divorce subsequent to the August 23, 2010, hearing.

More than three years later, on November 5, 2013, the wife filed a motion for a clarification of the purported divorce judgment, in which she pointed out that the circuit court had not entered a written order after the August 23, 2010, hearing; the wife requested that the circuit court “clarify the court [']s record as to the provisions of the [August 23, 2010,] hearing and its effect upon of the parties' judgment of divorce.”

The husband filed a response in which he again asserted that the purported divorce judgment had been entered without statutory authority. Therefore, he argued, the circuit court “lack[ed] jurisdiction to take any action in regard to the void order, including, but not limited to, making an order retroactive to a date prior to obtaining jurisdiction.” On November 19, 2013, the circuit court entered an order (“the purported clarification order”) pursuant to, it said, Rules 60 and 61, Ala. R. Civ. P. The purported clarification order reads, in pertinent part:

“[T]he clear understanding by the parties and meaning of this Honorable Court, that by the taking of oral testimony to establish the grounds and jurisdiction as part of the record, the Judgment of Divorce as entered on February 1[7], 2010[,] was ratified, affirmed, and adopted such as to give full weight and force to the same.”

(Emphasis added.)

On December 30, 2013, the husband filed a notice of appeal, and on January 3, 2014, the husband filed a petition for the writ of mandamus. On February 26, 2014, this court consolidated the husband's appeal and his petition for the writ of mandamus ex mero motu. In each, the husband seeks this court's review of whether the circuit court erred by (1) entering the purported divorce judgment in violation of § 30–2–3, Ala.Code 1975, (2) by concluding that its oral statements at the August 23, 2010, hearing amounted to a judgment under Rule 58, Ala. R. Civ. P., (3) by clarifying the purported divorce judgment in violation of Rule 58, or (4) by orally declaring that an order had a retroactive effect.

The Petition for the Writ of Mandamus

“ ‘Mandamus is a drastic and extraordinary writ that will be issued only when 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 AmSouth Bank, N.A., 589 So.2d 715 (Ala.1991) ; Ex parte Day, 584 So.2d 493 (Ala.1991).’

“Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).”

Ex parte Cate, 134 So.3d 870, 874 (Ala.2013).

The husband contends that the purported divorce judgment violates § 30–2–3, Ala.Code 1975, which provides, in its entirety:

“No judgment can be entered on the confession of the parties, or either of them, or if it appear that adultery was committed by either, with the consent of the other, for the purpose of obtaining a divorce, or where both parties have committed adultery, or where there has been a condonation of adultery by the admission of the offending party to conjugal embraces after knowledge of the commission of the crime, or when the husband knew of or connived at the adultery of the wife.”²

As we recently explained in Dubose v. Dubose, 132 So.3d 17 (Ala.Civ.App.2013), a divorce judgment is fatally flawed if it is based solely upon the parties' stipulations and not upon any evidence indicating the grounds for the divorce.

“Accordingly, the judgment of divorce ‘was without statutory authority and thus without the jurisdiction of the court.’ Johns [v. Johns ], 49 Ala.App. [317,] 320, 271 So.2d [514,] 516 [ (Civ.1973) ]. This court ‘cannot supply jurisdictional requirements.’ Helms [v. Helms, ] 50 Ala.App. [453,] 455, 280 So.2d [159,] 161 [ (Civ.1973) ]. Therefore, under the circumstances of this case—in which the trial court ordered the parties to stipulate to the divorce and was not presented with any evidence as to grounds for a divorce—we are required to reverse the order of the trial court divorcing the parties.”

Dubose, 132 So.3d at 21.

Unlike in Dubose, in this action the circuit court neither prohibited testimony nor ordered the parties to file a stipulation; yet, the result is the same. The purported divorce judgment was based upon the parties' stipulations and not upon any evidence indicating the grounds for the divorce. Although the circuit court was correct that an affidavit stating a ground for a divorce from either party would have sufficed, no such affidavit was filed. Likewise, an order divorcing the parties based on the wife's testimony at the August 23, 2010, hearing could have cured the defect; however, although the judge orally announced at the August 23, 2010, hearing that she intended to “take care of” or “fix” the defect and that she would make her order “retroactive,” she did not subsequently enter a written order divorcing the parties as required by Rule 58, Ala. R. Civ. P.

“ ‘Rule 58(a), Ala. R. Civ. P., provides:

“ ‘ “A judge may render an order or a judgment: (1) by executing a separate written document, (2) by including the order or judgment in a judicial opinion, (3) by endorsing upon a motion the words ‘granted,’ ‘denied,’ ‘moot,’ or words of similar import, and dating and signing or initialing it, (4) by making or causing to be made a notation in the court records, or (5) by

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