Willey v. Willey

• Decision Date: 08 January 2016
• Docket Number: 2140670.
• Citation: 203 So.3d 875
• Parties: Elizabeth Ellen WILLEY v. Allen Edward WILLEY.
• Court: Alabama Court of Civil Appeals

203 So.3d 875

Elizabeth Ellen WILLEY

v.Allen Edward WILLEY.

2140670.

Court of Civil Appeals of Alabama.

Jan. 8, 2016.

Charles H. Dunn of Boyd, Fernambucq, Dunn & Pann, P.C., Birmingham, for appellant.

Henry E. Lagman, Birmingham, for appellee.

MOORE, Judge.

Elizabeth Ellen Willey ("the former wife") appeals from a judgment of the Jefferson Circuit Court ("the trial court") dismissing her petition for a rule nisi, in which she asserted that Allen Edward Willey ("the former husband") had failed to pay alimony as ordered in a judgment divorcing the parties. We affirm the trial court's judgment in part, reverse it in part, and remand the cause with instructions.

Procedural History

The parties were divorced on or about December 12, 1975; the divorce judgment incorporated an agreement of the parties that included, among other things, the following language with regard to alimony:

"2. The [former husband] shall pay to the [former wife] as alimony the sum of $2,500.00 on or before December 15, 1975, and commencing on January 1, 1976, the sum of $1,000.00 and on January 15, 1976, the sum of $1,000.00; thereafter the [former husband] shall pay $1,000.00 on the first and fifteenth of each month thereafter until the [former wife] shall remarry or die, whichever shall first occur. The [former husband] shall pay to the [wife] as additional alimony commencing on March 31, 1976, and on the last day of each quarter thereafter, the sum of $3,000.00. The [former husband's] total annual alimony payment hereunder to equal $36,000.00 per annum for the year 1976 and thereafter."

On February 4, 1982, the parties consented to the entry of a judgment against the former husband in the amount of $14,000, with interest, which amount represented the amount of unpaid alimony that had accrued before November 25, 1981. On May 4, 1982, the parties entered a "consent decree of modification," in which they agreed to modify the settlement agreement incorporated into the divorce judgment as follows:

"1. Paragraph 2 of the Property Settlement Agreement made a part of the Final Judgment of Divorce, relating to payment of alimony, is modified to provide that [the former husband] shall pay to [the former wife] $500.00 on the twentieth day of each month, commencing on April 20, 1982. Further, in 1983, 1984, and 1985, [the former husband] shall make an annual payment of alimony to [the former wife] of $2,500.00 subject however to a maximum payment of $15,000.00 per annum as hereinafter provided. Each such annual payment shall be made on or before January 30th of those years.

"Commencing with the 1982 tax year, [the former husband] shall submit a copy of his Federal income tax return to [the former wife], at the same time as such return is due to be filed with the Internal Revenue Service. For any year in which [the former husband's] gross income equals or exceeds $100,000.00, as reflected on his Federal income tax return, the alimony owed to [the former wife] shall escalate to 10% of [the former husband's] gross income for that year. Any payment necessary to satisfy the difference between 10% of [the former husband's] gross income for the year and the amount of alimony otherwise accruing and paid during that year, shall be made within sixty days of the date on which [the former husband's] tax return is required to be filed with the Internal Revenue Service. In any event, the amount of alimony to be paid to [the former wife] shall not exceed $15,000.00 annually.

"....

"3. [The former wife] waives the arrearage in alimony payments accruing after November 25, 1981, and prior to April 19, 1982."

On September 19, 2014, the former wife filed a petition for a rule nisi, asserting, among other things, that the former husband had failed and/or refused to pay alimony as ordered and that he owed an alimony arrearage of over $313,681.86. The former husband filed a motion to dismiss on December 9, 2014, asserting that the former wife's claims were barred by the applicable statute of limitations. The trial court granted the former husband's motion to dismiss on December 24, 2014. The former wife filed a postjudgment motion on January 19, 2015. The former husband filed a response to the former wife's postjudgment motion on February 24, 2015. On April 10, 2015, following a hearing, the trial court entered an order denying the former wife's postjudgment motion. The former wife filed her notice of appeal to this court on May 19, 2015.

Standard of Review

"On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981) ; Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) [, Ala. R. Civ. P.,] 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 her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985) ; Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985) ; Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) 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. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986) ; Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986)."

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).

Discussion

The former husband argued in his motion to dismiss that the former wife's petition was barred by the applicable statute of limitations. Section 6–2–32, Ala.Code 1975, provides that actions upon a judgment entered by any court of this state must be commenced within 20 years of the entry of the judgment. The former husband argues that, because the former wife's action for unpaid alimony was commenced on September 19, 2014, over 20 years after the entry of the December 12, 1975, divorce judgment, her petition was barred by the operation of § 6–2–32. We note, however, that "each installment of periodic alimony awarded in a final judgment creates a final judgment on the date the obligation is due." Johnson v. Johnson, 191 So.3d 164, 172 (Ala.Civ.App.2015). Thus, the date of each installment of alimony that became due, rather than the date of the original divorce judgment, as argued by the former husband, is what we must look to in order to determine whether the former wife's claims are barred by the statute of limitations. The former wife concedes on appeal that, with regard to her claims for alimony installments that were due more than 20 years before the filing of her rule nisi petition, those claims would be barred by the 20–year statute of limitations. Thus, the trial court's dismissal is affirmed as to those claims for alimony installments that were due and owing before September 19, 1994. With regard to those installments that accrued after September 19, 1994, however, the former wife's claim for recovery is not barred by § 6–2–32. See Morgan v. Morgan, 275 Ala. 461, 464, 156 So.2d 147, 150 (1963) (indicating that recovery for child-support installments that became due within 20 years of filing petition seeking an arrearage on those installments was not barred by statute or by laches).

In her postjudgment motion, the former wife raised a number of additional issues. In his response to that motion, the former husband asserted that those issues further supported the trial court's dismissal of the wife's petition. The trial court did not indicate in its order denying the former wife's postjudgment motion whether it had considered the new arguments raised by both the former wife and the former husband. Additionally, although a hearing on the postjudgment motion was conducted, at which oral arguments were heard, a transcript of that hearing does not appear in the record on appeal. Typically, an appellate court will not presume that a trial court considered a new legal argument raised in a postjudgment motion, although the trial court has the discretion to do so. See Espinoza v. Rudolph, 46 So.3d 403, 416 (Ala.2010). We note, however, that, although we have concluded that the trial court erred in dismissing, in part, the former wife's claim regarding the former husband's alimony arrearages based on the statute of limitations, "this court may affirm a correct judgment of the trial court for any reason, even if the trial court did not consider that reason in making its ruling." K.L.R. v. L.C.R., 854 So.2d 124, 129 (Ala.Civ.App.2003). Accordingly, we must consider the merits of the arguments raised by the parties in the former wife's postjudgment motion and the former husband's response to that motion and again on appeal. See, e.g., DWOC, LLC v. TRX Alliance, Inc., 156 So.3d 978, 983 (Ala.Civ.App.2014).

In her postjudgment motion, the former wife cited Ala.Code 1975, § 6–9–191, which addresses the revival of judgments and provides that, "[i]f 10 years have elapsed from the entry of the judgment without issue of execution or if 10 years have elapsed since the date of the last execution issued, the judgment must be presumed satisfied, and the burden of proving it not satisfied is upon the plaintiff." She also cited Ala.Code 1975, § 6–9–192, which provides that a judgment on which an execution has not been made within 10 years of its entry may be revived by appropriate motion or action. The former wife then cited Hines v. Cunningham, 622 So.2d 395, 397 (Ala.Civ.App.1993), in which this court determined that, in accordance with § 6–9–192, the mother in that case had appropriately revived an arrearage judgment that had been entered over 10 years before she had filed her petition requesting an accounting and payment of the...