Wicks v. Wicks
Decision Date | 16 April 2010 |
Docket Number | 2080897. |
Citation | 49 So.3d 700 |
Parties | Jeffrey R. WICKS v. Jeanette R. WICKS. |
Court | Alabama Court of Civil Appeals |
William D. Cornelius IV, Tuscumbia, for appellant.
Johnnie L. Franks and Terrinell Lyons of The Shoals Law Group, LLC, Florence, for appellee.
On March 10, 2006, Jeanette R. Wicks filed a complaint for a divorce, seeking to terminate her marriage to Jeffrey R. Wicks. On September 8, 2008, having reached a divorce settlement agreement ("the agreement"), Jeffrey and Jeanette affirmed the provisions of the agreement before the trial court. In December 2008, Jeffrey moved to stay enforcement of the agreement, alleging that Jeanette had not disclosed specific assets, including two separate parcels of land valued at approximately $50,000, a condominium valued at approximately $60,000, and a certificate of deposit valued at $200,000 in her responses to his interrogatories and requests for production. On March 17, 2009, the trial court entered a final judgment of divorce, which incorporated the agreement. Jeffrey then filed a postjudgment motion alleging that Jeanette fraudulently had failed to disclose all of her ownership interest in the specific assets identified in his motion to stay enforcement of the agreement. In his postjudgment motion, Jeffrey requested a hearing pursuant to Rule 59, Ala. R. Civ. P. Without holding a hearing, the trial court denied Jeffrey's postjudgmentmotion.1 Jeffrey filed a timely notice of appeal to this court.2
Dubose v. Dubose, 964 So.2d 42, 46 (Ala.Civ.App.2007); see also Staarup v. Staarup, 537 So.2d 56, 57 (Ala.Civ.App.1988) ().
As Jeanette points out, this court has recognized an exception to the general rule that the denial of a postjudgment motion without conducting a requested hearing is reversible error. See Gibert v. Gibert, 709 So.2d 1257, 1258 (Ala.Civ.App.1998) (). "On appeal, ... if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule." Palmer v. Hall, 680 So.2d 307, 307-08 (Ala.Civ.App.1996); see also Lowe v. Lowe, 631 So.2d 1040, 1041 (Ala.Civ.App.1993) (). The Alabama Supreme Court has stated:
"Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court."
Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989). However, "[w]hen there is probable merit to the motion, the error cannot be considered harmless." Dubose, 964 So.2d at 46.
In Dubose, this court considered whether the failure to hold a hearing on the husband's postjudgment motion, which had been denied by operation of law, was harmless error. Id. at 46. The wife in Dubose had sought an uncontested divorce and had filed the necessary pleadings, including a waiver of service and an answer allegedly signed by the husband. Id. at 44. The trial court had entered a divorce judgment that incorporated an alleged agreement between the parties. Id. In his postjudgment motion, the husband alleged that he had not been informed that an uncontested divorce judgment had been entered, that he had not signed any document consenting to the uncontested divorce, and that any signature purporting to be his on any document relating to the uncontested divorce was fraudulent. The husband also requested a hearing on his postjudgment motion. Id. The husband's postjudgment motion was denied by operation of law. Id. at 45. On appeal, the husband argued that he should have been afforded a hearing on his postjudgment motion. Id. at 46. This court held:
In this case, Jeffrey alleges that Jeanette fraudulently failed to disclose in her response to his discovery requests two separate parcels of land valued at approximately $50,000, a condominium valued at approximately $60,000, and a certificate of deposit valued at $200,000. After discovering Jeanette's failure to disclose the property, Jeffery filed a motion to stay enforcement of the agreement, and, after the trial court entered a divorce judgment incorporating the agreement, Jeffrey filed a Rule 59 postjudgment motion. In his postjudgment motion, Jeffrey specifically requested a hearing pursuant to Rule 59(g). However, the trial court denied Jeffrey's postjudgment motion without a hearing. Like the husband's allegations of fraud in Dubose, Jeffrey's allegation that Jeanette fraudulently concealed assets, if proven, may be a ground to set aside the final judgment. See Barganier v. Barganier, 669 So.2d 933, 937 (Ala.Civ.App.1995) (...
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