Williams v. Williams
| Decision Date | 17 July 2015 |
| Docket Number | 2140292. |
| Citation | 197 So.3d 480 |
| Parties | Denise M. WILLIAMS v. John R. WILLIAMS. |
| Court | Alabama Court of Civil Appeals |
Alabama Supreme Court 1141360.
Mark G. Montiel, Sr., and C. Jordan Speake of Mark G. Montiel, P.C., Montgomery, for appellant.
G. Houston Howard II of Law Office of Keith A. Howard, LLC, Wetumpka, for appellee.
This is the second time Denise M. Williams (“the wife”) and John R. Williams (“the husband”) have been before this court. See Williams v. Williams, [Ms. 2130615, Nov. 14, 2014] ––– So.3d ––––, –––– (Ala.Civ.App.2014)(“Williams I ”). In Williams I we considered the propriety of the Elmore Circuit Court's partial summary judgment on the issue of the validity of the parties' prenuptial agreement and whether the partial summary judgment had been properly certified as final pursuant to Rule 54(b), Ala. R. Civ. P. Williams I, ––– So.3d at ––– –. A majority of this court concluded that the partial summary judgment had been properly certified as final and that the circuit court had erred by entering a partial summary judgment in favor of the husband because a genuine issue of material fact existed. ––– So.3d at ––– –. Our opinion was released on November 14, 2014. On January 20, 2015, after his application for rehearing was denied by this court, the husband filed a petition for the writ of certiorari in our supreme court, which is currently pending. Thus, no certificate of judgment has been issued in Williams I .
Veteto v. Yocum, 792 So.2d 1117, 1118–19 (Ala.Civ.App.2001).
In the meantime, on October 31, 2014, and December 4, 2014, the husband filed unopposed motions in the circuit court seeking the entry of a divorce judgment. On December 5, 2014, the circuit court entered a judgment divorcing the parties, which reads, in pertinent part:
On January 12, 2015, the wife filed this appeal seeking a determination as to whether the circuit court lacked jurisdiction to enter the divorce judgment; she asserts that the circuit court lacked jurisdiction because the pendency of the husband's petition for the writ of certiorari and the lack of a certificate of judgment in Williams I prevents the circuit court from proceeding on the divorce issue and because the circuit court did not conduct a hearing to establish grounds for a divorce.
See Ex parte Smith, 438 So.2d 766, 768 (Ala.1983) ( ’ .”
Loachapoka Water Auth., Inc. v. Water Works Bd. Auburn, 74 So.3d 419, 422 (Ala.2011).
The circuit court did not lack jurisdiction to act on the divorce claim based on the lack of a certificate of judgment in Williams I . Although the wife would be correct if the December 5, 2014, judgment had addressed the division of the parties' property, the lack of a certificate of judgment in Williams I does not affect the circuit court's jurisdiction to enter the divorce. “Rule 54(b) [, Ala. R. Civ. P.,] provides a mechanism for appealing a judgment on fewer than all the claims that are before a trial court.” Regions Bank v. Reed, 60 So.3d 868, 877 (Ala.2010). “Under ‘appropriate facts,’ a partial summary judgment on an original claim may be finally adjudicated pursuant to Rule 54(b), leaving a [remaining claim] undecided so that the parties can further litigate the issues presented by the [remaining claim].” Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987) (citing Pate v. Merchants Nat'l Bank of Mobile, 409 So.2d 797, 798 (Ala.1982) ). In Williams I we instructed the circuit court to conduct further proceedings on the claim regarding the validity of the prenuptial agreement. We did not, and indeed could not, reach the remaining claim—the claim for a divorce—in Williams I . Similarly, the circuit court has not and cannot hold a hearing on the validity of the prenuptial agreement until a certificate of judgment is issued in Williams I.1 However, the parties could properly litigate the issue of the divorce itself. Thus, we do not agree with the wife that, by adjudicating the claim for a divorce, the circuit court acted outside its jurisdiction.
Next, the wife complains that the circuit court lacked authority to enter the divorce judgment because it failed to conduct a hearing to elicit grounds for a divorce and failed to take “in-court testimony,” which, she argues, resulted in the circuit court's impermissible entry of the divorce judgment without its having received evidence indicating, in this case, incompatibility.
Section 30–2–1(a)(7), Ala.Code 1975, allows a circuit court to enter a divorce judgment when it is “satisfied from all the testimony in the case that there exists such a complete incompatibility of temperament that the parties can no longer live together.” (Emphasis added.) The circuit court indicated that it had relied on, among other documents, the wife's complaint, the husband's answer, and the husband's affidavit. Thus, the wife complains, the circuit court heard no “testimony” upon which to base its conclusion that the parties were incompatible. Although the circuit court did not take oral testimony, it was not without testimony upon which to base the divorce judgment.2
In this case, the wife's pleading—her verified complaint—was properly treated as an affidavit because it contained sufficient specific facts that the wife knew to be true.
The husband denied the wife's allegations in his answer; however, he later submitted an affidavit testifying to the parties' incompatibility. An affidavit from either party stating a ground for a divorce suffices as testimony regarding that ground for a divorce. See Ex parte Robertson, 174 So.3d 970, 974 (Ala.Civ.App.2014), cert. denied, 174 So.3d 977 (Ala.2015). In light of the parties' affidavits, a hearing to elicit testimony establishing incompatibly as the ground for a divorce was not necessary.
In conclusion, the wife has failed to present an argument explaining how the circuit court erred in entering the divorce judgment. The judgment of the circuit court is, therefore, affirmed.
AFFIRMED.
I concur only in the result reached by the main opinion with regard to its discussion of the issue whether the pendency of the husband's petition for certiorari review of this court's judgment of reversal in Williams v. Williams, [Ms. 2130615, Nov. 14, 2014] ––– So.3d –––– (Ala.Civ.App.2014), precluded the trial court's consideration of the parties' claims seeking to be divorced on the basis of incompatibility. The wife argued that the trial court could not enter the divorce judgment because the issue of the validity of the prenuptial agreement governing issues pertaining to property division was still the subject of review in the appellate courts. In her brief submitted to this court, the wife correctly argues that, while an appeal is pending in an appellate court, a trial court lacks jurisdiction to rule in the action except as to matters that are “entirely collateral” to the issues before the appellate court. See M.G. v. J.T., 105 So.3d 1232, 1233 (Ala.Civ.App.2012). The wife has failed to present, and my research did not disclose, authority to support the proposition that, when an order addressing other issues in a divorce action has been certified as final pursuant to Rule 54(b), Ala. R. Civ. P., the issue of a claim for a divorce is not ...
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Williams v. Williams (Ex parte Williams)
...of Civil Appeals has affirmed that judgment, and this Court has denied certiorari review of that affirmance. 5 See Williams v. Williams, 197 So.3d 480 (Ala.Civ.App.2015). At least under the unique circumstances presented here, I am not inclined to vote in favor of granting certiorari review......