Romer v. Romer, No. 2080353 (Ala. Civ. App. 12/4/2009)

• Decision Date: 04 December 2009
• Docket Number: No. 2080353.,No. 2080498.,2080353.,2080498.
• Parties: Vilma G. Romer v. John H. Romer Vilma G. Romer v. John H. Romer
• Court: Alabama Court of Civil Appeals

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Vilma G. Romer v. John H. Romer

Vilma G. Romer v. John H. Romer

No. 2080353.

No. 2080498.

Court of Civil Appeals of Alabama.

Decided December 4, 2009.

Appeals from Madison Circuit Court (DR-06-1129)

On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of September 25, 2009, is withdrawn, and the following is substituted therefor.

Vilma G. Romer ("the wife") appeals from an order of the Madison Circuit Court vacating a qualified domestic relations order ("QDRO") it had entered pursuant to its judgment divorcing John H. Romer ("the husband") and her (appeal no. 2080353), as well as from a QDRO subsequently entered by the trial court (appeal no. 2080498). This court consolidated the wife's appeals. For the reasons stated herein, we dismiss appeal no. 2080353, we reverse the trial court's order vacating its original QDRO, we vacate the trial court's subsequently entered QDRO order, and we remand the cause.

On July 24, 2006, the wife filed an action seeking a divorce from the husband. In January 2008, the husband and the wife reached an agreement regarding the division of their marital property. Their agreement, which was reduced to writing, provided, among other things, that the wife would receive "[t]he sum of SIX HUNDRED THOUSAND AND 00/100 ($600,000) DOLLARS from the Husband's retirement account [] accumulated through his employment with Radiology of Huntsville, P.C." The agreement provided that the husband was to receive "[t]he balance remaining of any retirement account [] accumulated through his employment with Radiology of Huntsville, P.C. after the award of $600,000 to the Wife as noted above." The husband executed the agreement on January 28, 2008; the wife executed the agreement on March 14, 2008. On March 26, 2008, the trial court entered a judgment divorcing the parties. The judgment incorporated the parties' written agreement.

On September 24, 2008, the trial court entered a QDRO for the purpose of implementing that portion of its judgment awarding the wife $600,000 from the husband's retirement account.¹ On October 21, 2008, the husband filed a motion to alter or amend the QDRO. The husband asserted that he had agreed to pay the wife a larger amount of monthly alimony than he believed she was entitled to because, at the time the parties entered into their agreement in January 2008, the amount to be awarded to the wife from the husband's retirement account constituted less than half of the total funds in that account. He asserted that, since the date of the divorce judgment, his retirement account had decreased in value from approximately $1,700,000 to $1,150,000. He argued that the parties' intent at the time they entered into the agreement dividing the marital assets was that the wife would receive $600,000 from the retirement account as of the date of the divorce judgment, "together with all earnings and losses thereof from that date until the date of distribution." He also indicated that he had been informed by counsel for the retirement account that the trial court's QDRO did not comply with the requirements of federal law and needed to be amended to correctly identify the retirement account and to specify how payment was to be made to the wife from the retirement account.

In her response to the husband's motion to alter or amend the QDRO, the wife argued that the husband's motion sought, in actuality, an amendment of the divorce judgment; she argued that the trial court no longer had jurisdiction to make such a modification and that, therefore, the husband's motion was due to be dismissed. She contended that the terms of the divorce judgment, and of the parties' agreement incorporated therein, were clear and unambiguous in their requirement that the husband pay to her a sum certain from his retirement account rather than a percentage of his retirement account. She denied that the parties' intent was to burden her $600,000 award from the retirement account with the earnings and losses from the date of the judgment until the date of distribution.

The trial court held a hearing on the husband's motion at which it received ore tenus evidence. On December 24, 2008, the trial court entered an order granting the husband's motion and vacating its QDRO. Relying on this court's decision in Buchanan v. Buchanan, 936 So. 2d 1084 (Ala. Civ. App. 2005), the trial court found that its judgment of divorce as well as its QDRO were "inherently ambiguous" because they did not mention the impact of market fluctuations on the value of the husband's retirement account. The trial court found that the delay in the entry of the QDRO was the fault of counsel for both of the parties but that counsel for the wife was more responsible for the delay. The trial court found that the parties' intent was that the wife receive from the husband's retirement account an amount equal to 35.5% of its value. The trial court ordered that a new QDRO be entered that reflected its findings. The wife filed a notice of appeal to this court from the December 24, 2008, order.

On January 26, 2009, the trial court entered a new QDRO that indicated that the wife's interest in the husband's retirement account was 35.5% of the value of the account. The order provided that it was the trial court's intent that the parties bear proportionally the decrease in the value of the account since the date of the judgment divorcing the parties. The wife filed a timely notice of appeal from that order. This court consolidated the wife's appeals.

We first address this court's jurisdiction over the wife's appeals. With some exceptions, this court's appellate jurisdiction extends only to final judgments. Although most actions at law involve only a single final judgment (generally requiring the payment of money damages by, or the exoneration of, a defendant), equitable actions can and often do involve multiple final judgments. In James v. Alabama Coalition for Equity, Inc., 713 So. 2d 937 (Ala. 1997), our supreme court wrote:

"`Equity decrees may be partly final and partly interlocutory. A decree which ascertains and declares the rights of the parties and settles the equities is a final decree, although it provides for further proceedings under the direction of the court in order to carry the decree into effect. If there is a decree directing further proceedings under the direction of the court in order to make the final decree effective, such decree is interlocutory and remains within the control of the court because as to such decree and further proceedings thereunder the cause remains in fieri.'

"[Newton v. Ware,] 271 Ala. [444,] 450, 124 So. 2d [664,] 670 [(1960)], quoted in Taylor [v. Taylor, 398 So. 2d 267 (Ala. 1981),] and Sexton [v. Sexton, 280 Ala. 479, 195 So. 2d 531 (1967)].

"Even more significantly from the point of view of this case, `[i]n equity cases there can be more than one final judgment from which an appeal may be taken.' Norris v. Norris, 406 So. 2d 946, 948 (Ala. Civ. App. 1981) (emphasis added); see also Chadwick v. Town of Hammondville, 270 Ala. 618, 621, 120 So. 2d 899, 902 (1960). This is so because `there may remain ... other matters in which the equities have not been settled or proceedings necessary to enforce the judgment previously entered. A court has inherent power to issue such orders or process as necessary to render its judgment effective.' 406 So. 2d at 948; Monroe v. Monroe, 356 So. 2d 196 (Ala. Civ. App. 1978)."

James, 713 So. 2d at 945. Moreover, "`our cases hold that a trial court has the inherent authority to interpret [or] implement ... its own judgments.'" Downs v. Downs, 978 So. 2d 768, 771 (Ala. Civ. App. 2007) (quoting Jardine v. Jardine, 918 So. 2d 127, 131 (Ala. Civ. App. 2005)).

In the present case, the trial court's March 26, 2008, judgment of divorce constituted a final judgment, in spite of the fact that a portion of the judgment required the subsequent entry of a QDRO for implementation. Franz v. Franz, 732 So. 2d 61, 65 (Ala. Civ. App. 1997). The trial court's QDRO of September 24, 2008, likewise constituted a final judgment, because it resolved all the outstanding issues between the parties related to the implementation of the trial court's divorce judgment. See James, 713 So. 2d at 945; Ex parte DCH Reg'l Med. Ctr., 571 So. 2d 1162, 1164 (Ala. Civ. App. 1990) ("[T]he test of a judgment's finality is whether it sufficiently ascertains and declares the rights of the parties.").²

The trial court's order of December 24, 2008, setting aside its September 24, 2008, QDRO was not a final judgment and does not support the wife's first appeal because that order effectively reopened the issue of implementation of the trial court's divorce judgment; the December 24, 2008, order called for the entry of a new QDRO for the purpose of implementing the divorce judgment. As such, the wife's first appeal, appeal no. 2080353, is due to be dismissed as having been taken from an interlocutory order of the trial court. See White v. Drivas, 954 So. 2d 1119, 1121 (Ala. Civ. App. 2006) ("A nonfinal order will not support an appeal."). For the reasons that the trial court's September 24, 2008, QDRO was a final judgment, however, the trial court's January 26, 2009, QDRO, purporting to implement its divorce judgment, was a final judgment that fully supports the wife's second appeal. As a result, although this court lacks appellate jurisdiction over appeal no. 2080353, this court has appellate jurisdiction over appeal no. 2080498, which encompasses the issues the parties address on appeal. Thus, we proceed to a review of the merits of the wife's appeal.

As discussed below, the question before this court is whether the parties' settlement agreement, incorporated into the trial court's judgment divorcing the parties, was ambiguous and subject to interpretation by the trial court in a later order. That question is one of law, which this court reviews de novo. Judge v. Judge, 14 So. 3d 162, 165 (...