Wilson v. Wilson, 2150259

• Decision Date: 21 October 2016
• Docket Number: 2150259
• Parties: Randolph G. WILSON, Jr. v. Teresa L. WILSON
• Court: Alabama Court of Civil Appeals

262 So.3d 1192

Randolph G. WILSON, Jr.

v.Teresa L. WILSON

2150259

Court of Civil Appeals of Alabama.

October 21, 2016

Terrie Scott Morgan of Capell & Howard, P.C., Montgomery, for appellant.

John Olszewski of Minor & Olszewski, L.L.C., Montgomery, for appellee.

THOMPSON, Presiding Judge.

The Montgomery Circuit Court ("the trial court") entered a judgment on April 1, 2004, that divorced Randolph G. Wilson, Jr. ("the husband"), and Teresa L. Wilson ("the wife"). Among other things, the 2004 divorce judgment awarded the wife a portion of the husband's retirement benefits, awarded the wife $1,250 per month in periodic alimony, and ordered the husband to maintain a life-insurance policy naming the wife as beneficiary for as long as his periodic-alimony obligation continued. The husband appealed from the divorce judgment, challenging that part of the property division that awarded the wife a portion of his retirement benefits, and this court reversed the judgment and remanded the case for a redetermination of the property division and alimony award. Wilson v. Wilson, 941 So.2d 967, 970 (Ala. Civ. App. 2005). The record does not contain the divorce judgment entered upon remand after this court's release of Wilson v. Wilson, supra, but the record indicates that the wife was awarded periodic alimony.

In 2001, the wife filed a contempt action with regard to matters not pertinent to this appeal, and the trial court entered a judgment in that action in September 2004.

On August 20, 2013, the husband filed an action in which he sought to modify his periodic-alimony obligation; hereinafter, we refer to that action as "the .02 modification action."¹ In his complaint filed in the .02 modification action, the husband alleged that he planned to retire approximately 10 days after the date that action was initiated and that, as a result of his expected retirement, he would suffer a decrease in his income. The husband further alleged that the wife was employed and was capable of supporting herself without receiving periodic alimony.

During the course of the litigation in the .02 modification action, the wife filed a motion to have the husband held in contempt and for an award of sanctions for the husband's alleged abuses of discovery practices during the course of the .02 modification action. On March 5, 2014, the trial court entered a judgment in the .02 modification action in which it granted the wife's motion to have the husband held in contempt, awarded the wife an attorney fee and costs as sanctions, and dismissed the husband's complaint because of the husband's failure to comply with court orders and the Alabama Rules of Civil Procedure. No appeal was taken from the March 5, 2014, judgment in the .02 modification action.

One year later, on March 6, 2015, the husband filed in the trial court a petition to modify his alimony obligation; that filing initiated the action that is currently before this court. In his petition to modify in this action, the husband alleged that he had suffered a material change in his income because of his retirement from the military and that the wife was capable of supporting herself. In that petition, the husband alleged that there had been a material change in circumstances since the entry of the April 1, 2004, divorce judgment that warranted a change in his periodic-alimony obligation.² The husband's March 6, 2015, petition to modify contained no reference to the March 5, 2014, judgment in the .02 modification action. The wife answered and opposed the husband's claim for a modification.

The trial court conducted an ore tenus hearing. At that hearing, the wife argued that the husband was limited in his presentation of evidence to events occurring since the entry of the most recent, March 5, 2014, judgment in the .02 modification action. The husband maintained that he could present evidence relating back to the date of the April 1, 2004, divorce judgment. The trial court agreed with the wife's argument and stated that it would consider evidence only as it related to a change in circumstances since the entry of the March 5, 2014, judgment.

On November 4, 2015, the trial court entered a judgment in this action in which it determined that the husband had failed to meet his burden for obtaining a modification of his alimony obligation, and it "dismissed" the husband's modification petition. In its November 4, 2015, judgment, the trial court also awarded the wife $5,000 as compensation for her attorney fees and costs. The husband filed a timely notice of appeal to this court.

The husband first argues that the trial court erred in limiting his presentation of the evidence to the period after the entry of the most recent, March 5, 2014, judgment. Initially, we note that, in her answer to the husband's March 6, 2015, petition to modify, the wife asserted several affirmative defenses, including the doctrine of res judicata. See Rule 8(c), Ala. R. Civ. P. Other than in the wife's answer, the doctrine of res judicata is not mentioned elsewhere in the record, and the wife did not argue that theory before the trial court during the ore tenus hearing. A party asserting an affirmative defense "'bears the burden of proving the essential elements of his affirmative defenses.'" Ex parte Ramsay, 829 So.2d 146, 152 (Ala. 2002) (quoting Ex parte Blue Cross & Blue Shield of Alabama, 773 So.2d 475, 478 (Ala. 2000) ). Rather, during the ore tenus hearing, the parties argued only the issue whether the trial court should consider the evidence pertaining to the husband's claim seeking a modification of periodic alimony dating back to when the April 1, 2004, divorce judgment was entered or to when the March 5, 2014, judgment on the husband's last modification action was entered. "[Our supreme court has] said that a case will not be reviewed ... on a theory different from that on which the trial was had."

Sealy v. McElroy, 288 Ala. 93, 98, 257 So.2d 340, 344 (1972). See also Lewis v. Oakley, 847 So.2d 307, 311 (Ala. 2002) ("'It is well established that this Court will not consider a case on a theory different from that on which it was tried below.' Kmart Corp. v. Bassett, 769 So.2d 282, 284 n.2 (Ala. 2000)."). Accordingly, we have addressed the issues on appeal as they were presented to the trial court by the parties and as they were considered and decided by the trial court.

The husband maintains that the trial court should have considered evidence pertaining to the entire period after the entry of the April 1, 2004, divorce judgment. The wife argues in support of the trial court's judgment that the most recent, March 5, 2014, judgment in the husband's earlier action to modify his periodic-alimony obligation constituted an adjudication on the merits of that claim. She cites Rule 41(b), Ala. R. Civ. P., which provides, in pertinent part:

"(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, [Ala. R. Civ. P.,] operates as an adjudication upon the merits."

As indicated, the trial court entered the March 5, 2014, judgment dismissing the .02 modification action after it determined that the husband had failed to comply with discovery requests and court orders. The parties do not dispute that the March 5, 2014, judgment in the .02 modification action constituted a dismissal pursuant to Rule 41(b).³ Thus, that March 5, 2014, judgment constituted "an adjudication upon the merits" of the husband's claims in the .02 modification action. Rule 41(b) ; see also Clothier v. Counseling, Inc., 875 So.2d 1198, 1200 (Ala. Civ. App. 2003) ("The trial court's dismissal of Clothier's first complaint was a final judgment that operated as an adjudication on the merits."); Washington Mut. Bank, F.A. v. Campbell, 24 So.3d 435, 441 (Ala. 2009) ("The very purpose of Rule 41(b) is to remove doubt about a court's intention when it dismisses an action.").

The husband contends that an award of periodic alimony may be modified upon a material change of circumstances that has occurred since "the last award" of periodic alimony, rather than since the most recent judgment on a claim pertaining to periodic alimony. In other words, the husband contends that the relevant period for which he needed to establish a material change in circumstances, warranting a modification of his periodic-alimony obligation, dates back to April 1, 2004, the date of the original divorce judgment that awarded alimony, and not to March 5, 2014, the date of the judgment that dismissed his claim seeking to modify his periodic-alimony obligation in the .02 modification action.

In Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala. Civ. App. 1995), this court stated that "[t]he trial court may modify an award of periodic alimony if the petitioner proves that a material change of circumstances has occurred since the last award was made." Multiple cases have either cited, or more frequently quoted, Kiefer for that same proposition. See, e.g., Miller v. Miller, 47 So.3d 262, 263 (Ala. Civ. App. 2009) ; Stanford v. Stanford, 34 So.3d 677, 681 (Ala. Civ. App. 2009) ; Beatty v. Beatty, 991 So.2d 761, 767 (Ala. Civ. App. 2008) ; Schiesz v. Schiesz, 941 So.2d 279, 289 (Ala. Civ. App. 2006) ; Sexton v. Sexton, 935 So.2d 454, 461 (Ala. Civ. App. 2006) ; and R.J.W. v. C.L.W., 872 So.2d 876, 877 (Ala. Civ. App. 2003). We note that in all of those cases, the most recent judgments had awarded periodic alimony; in other words, there were no intervening judgments denying a requested modification of the periodic-alimony obligation.

The husband concedes that Alabama caselaw exists limiting the...