Waite v. Waite

• Court: Alabama Supreme Court
• Writing for the Court: Smith
• Citation: Waite v. Waite, 959 So.2d 610 (Ala. 2006)
• Decision Date: 28 July 2006
• Docket Number: 1040438.
• Parties: Daniel WAITE, Sr. v. Margaret Susan Helmondollar WAITE.

959 So.2d 610

Daniel WAITE, Sr. v. Margaret Susan Helmondollar WAITE.

1040438.

Supreme Court of Alabama.

July 28, 2006.

Rehearing Denied January 12, 2007.

Albert L. Jordan, Michael L. Jackson, and Matthew D. Fridy of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and Steven T. Speakman of Speakman & Speakman, Auburn, for appellant.

Sheldon Perhacs, Birmingham, for appellee.

SMITH, Justice.

Daniel Waite, Sr., appeals from the dismissal of his complaint, which sought to invalidate a divorce decree entered in 1960 by the Russell Circuit Court. We affirm.

Facts and Procedural History

This action is the second action that the appellant, Daniel Waite, Sr., has filed against the appellee, Margaret Susan Helmondollar Waite, in the Russell Circuit Court, and this appeal marks the third appeal Daniel has filed in his actions against Margaret in Alabama.

The facts and procedural history of the first and second appeals are summarized in Waite v. Waite, 891 So.2d 341, 341-42 (Ala.Civ.App.2004), as follows:

"The record indicates that in 1960 Margaret and [Reese] Helmondollar obtained a divorce by a judgment (`the 1960 divorce judgment'¹) of the trial court. [Daniel Waite, Sr.,] and Margaret married in 1968. Four children were born of their marriage. [Daniel] and Margaret now reside in Texas. It appears that [Daniel] and Margaret separated sometime in 1999, and Margaret initiated divorce proceedings in Texas.

"On December 28, 2001, [Daniel] filed a complaint in the trial court in which he alleged that at the time Margaret and [Reese] sought their divorce, neither party to the 1960 divorce judgment had satisfied the residency requirements for obtaining a divorce in Alabama. [Daniel] sought a judgment declaring the 1960 divorce judgment void. In his 2001 declaratory-judgment action, [Daniel] named only Margaret as a defendant. It appears from the record on appeal that in prosecuting the 2001 declaratory-judgment action, [Daniel] wanted to have the 1960 divorce judgment declared void to aid in his attempt to have his 33-year marriage to Margaret invalidated.

"Margaret moved to dismiss the 2001 declaratory-judgment action. In her motion to dismiss, Margaret alleged, among other things, that [Daniel] lacked standing to bring that action and that [Daniel] had failed to join certain indispensable parties. On February 8, 2002, the trial court entered a notation on Margaret's motion to dismiss indicating that it granted that motion. [Daniel] filed a postjudgment motion. The trial court conducted a hearing on [Daniel's] postjudgment motion, and it received ore tenus evidence. On May 16, 2002, the trial court entered an order denying [Daniel's] motion to alter, amend, or vacate its February 8, 2002, judgment.

"[Daniel] appealed the trial court's judgment in the 2001 declaratory-judgment action to our supreme court.¹ On March 28, 2003, our supreme court affirmed the trial court's judgment in the 2001 declaratory-judgment action without issuing an opinion; the court cited Yerger v. Cox, 281 Ala. 1, 198 So.2d 282 (1967),² in its no-opinion affirmance. Waite v. Helmondollar (No. 1011686, March 28, 2003), 881 So.2d 546 (Ala. 2003) (table).

"On August 21, 2003, after the supreme court issued its decision in Waite v. Helmondollar, supra, [Daniel] filed a second declaratory-judgment action in the trial court. The 2003 declaratory-judgment action was assigned to the same trial judge that had considered the 2001 declaratory-judgment action. In the 2003 declaratory-judgment action, [Daniel] named Margaret and [Reese] as defendants; in that action, he sought to have the 1960 divorce judgment declared void because, he alleged, the evidence presented during Margaret and [Daniel's] divorce proceedings in Texas established that the parties to the 1960 divorce judgment did not allege or prove the residency requirements necessary to invoke the jurisdiction of the court that entered the 1960 divorce judgment.

"On August 28, 2003, seven days after [Daniel] filed the 2003 declaratory-judgment action, the trial court, on its own motion, entered a judgment in favor of the defendants. The trial court cited the doctrine of res judicata in entering that part of its judgment in favor of Margaret and the doctrine of collateral estoppel in that part of its judgment in favor of [Reese].

¹ "Apparently, neither party to the 2001 declaratory-judgment action contested the jurisdiction of the Alabama Supreme Court to hear that appeal, and neither party addresses that issue in this appeal. In any event, this court could not set aside a judgment of our supreme court. [Daniel] appealed the judgment in the 2003 declaratory-judgment action that forms the basis of this appeal to the supreme court, and that court transferred the appeal to this court on the basis that this court has appellate jurisdiction. But see Ex parte Galanos, 796 So.2d 390 (Ala.2000); Evers v. Link Enters., Inc., 386 So.2d 1177 (Ala.Civ.App.1980).

² "In Yerger v. Cox, supra, the children of a decedent sought to have a divorce judgment obtained by the decedent's second wife, the children's stepmother, before her marriage to the decedent declared void. If the stepmother's divorce had been held void, thus invalidating the stepmother's marriage to the decedent, the children would have received a greater amount in military survivor benefit payments. All of the parties to the action were nonresidents of Alabama. Our supreme court held that the decedent's children, who were `strangers' to their stepmother's divorce judgment, could not seek to have that judgment declared void."

The Court of Civil Appeals reversed the trial court's dismissal of the 2003 declaratory-judgment action. The court reasoned:

"The doctrines of res judicata and collateral estoppel are affirmative defenses, Rule 8(c), Ala. R. Civ. P.; Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So.2d 507, 516 (Ala.2002), and do not affect a court's jurisdiction to consider an action. Affirmative defenses may be waived if they are not pleaded by a party against whom a claim is asserted. Rule 8(c), Ala. R. Civ. P.; Bechtel v Crown Cent. Petroleum Corp., 451 So.2d 793 (Ala.1984) (citing 2A J. Moore, Federal Practice § 8.27[3] at 8-251 (2d ed.1948)). By its actions in the present case, the trial court, in essence, asserted the affirmative defenses of the doctrines of res judicata and collateral estoppel on behalf of the defendants and dismissed the matter based on those affirmative defenses.

"After careful consideration, we find most persuasive the reasoning of the courts that have held that, although a trial court may dismiss an action on its own motion on a jurisdictional basis, affirmative defenses such as the statute of limitations or the doctrine of res judicata are not jurisdictional bases upon which a court may base a sua sponte dismissal. See Lease Partners Corp. v. R & J Pharmacies, Inc., [329 Ill.App.3d 69, 768 N.E.2d 54, 263 Ill.Dec. 294 (2002)]; Adams v. Inman, [892 S.W.2d 651 (Mo. Ct.App.1994)]. Therefore, we must conclude that the trial court erred in dismissing the action, on its own motion, based upon affirmative defenses not asserted by the defendants."

891 So.2d at 343-44.

On May 21, 2004, following remand from the Court of Civil Appeals, Margaret filed another motion to dismiss. Among other things, Margaret argued that Daniel lacked standing to challenge the 1960 divorce decree.² On July 21, 2004, the trial court granted Margaret's motion to dismiss. The basis for the dismissal, however, is not apparent from the face of the trial court's order, which states:

"1) [The] hearing held in this court in [the 2001 declaratory-judgment action] on April 22, 2002, was an adjudicatory hearing.

"2) [Daniel] first learned in August 1970 of possible irregularities of [Margaret's] divorce from Reese....

"3) [Daniel] received legal advice in 1994 concerning [Margaret's] Russell County divorce from [Reese]....

"It is therefore, Ordered, Adjudged, and Decreed:

"That defendant, Margaret Susan Helmondollar Waite's Motion to Dismiss is granted."

On August 19, 2004, Daniel filed two postjudgment motions: one requested the trial court, in accordance with Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate its judgment of dismissal; the other sought relief under Rule 60, Ala. R. Civ. P. On October 13, 2004, the trial court denied Daniel's Rule 60 motion and set the Rule 59(e) motion for hearing on December 6, 2004.³

The trial court did not rule on Daniel's Rule 59(e) motion; it was denied by operation of law. Rule 59.1, Ala. R. Civ. P. Daniel filed a "renewed" Rule 60 motion on November 17, 2004; the trial court denied that motion on November 29, 2004. Daniel filed a timely notice of appeal.

Standard of Review

"`The standard of review of the grant of a motion to dismiss ... was set out in Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993):

"`"On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review ... is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a ... dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief."'

"Jacks v. Madison County, 741 So.2d 429, 430 (Ala.Civ.App.1999) (citations omitted). In addition, `[m]otions to dismiss are rarely appropriate in declaratory judgment proceedings. Such a motion does, however, serve one purpose, that of determining whether the [complaint] states the substance of a bonafide justiciable controversy which should be settled.' Wallace v. Burleson, 361 So.2d 554, 555 (Ala.1978) (citation omitted)."

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