Wilson v. Wilson (Ex parte Wilson)

• Decision Date: 16 January 2018
• Docket Number: 1160101
• Citation: 262 So.3d 1202
• Parties: EX PARTE Randolph G. WILSON, Jr. (In re: Randolph G. Wilson, Jr. v. Teresa L. Wilson)
• Court: Alabama Supreme Court

262 So.3d 1202

EX PARTE Randolph G. WILSON, Jr.

(In re: Randolph G. Wilson, Jr.

v.Teresa L. Wilson)

1160101

Supreme Court of Alabama.

January 16, 2018

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

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

MURDOCK, Justice.

Randolph G. Wilson, Jr. ("the husband"), petitioned this Court for certiorari review of the decision of the Court of Civil Appeals affirming the Montgomery Circuit Court's judgment denying his motion to modify his alimony obligations. Wilson v. Wilson, 262 So.3d 1192 (Ala. Civ. App. 2016). We reverse and remand.

I. Proceedings Below

The husband and Teresa L. Wilson ("the wife") were divorced in April 2004. Among other things, the divorce judgment awarded the wife $1,250 per month in periodic alimony. In August 2013, the husband commenced an action in which he sought to modify his periodic-alimony obligation ("the first modification action"). The complaint in the first modification action alleged that the husband planned to retire approximately 10 days after the initiation of the action and that, as a result of his retirement, he would suffer a significant decrease in income.¹ The husband also alleged that the wife was now employed full-time and was capable of supporting herself without receiving periodic alimony.

During the course of the first modification action, the wife moved to have the husband held in contempt for the husband's alleged failure to comply with court orders regarding discovery. On March 5, 2014, the trial court entered a judgment in the first modification action granting the wife's motion to hold the husband in contempt and dismissing the husband's complaint. No appeal was taken.

In March 2015, the husband commenced the present action, again seeking to modify his alimony obligation. The husband alleged that he had suffered a material change in his income as a result of his retirement from the military and that the wife is now capable of supporting herself.²

The trial court conducted a hearing at which evidence was presented ore tenus. The wife argued that the husband would be limited in the presentation of evidence to events and circumstances occurring after the entry of the March 5, 2014, judgment in the first modification action. The husband argued that he could present evidence of the change in his financial circumstances since the entry of the divorce judgment in April 2004. The trial court agreed with the wife and allowed the husband to present evidence only as to changes in circumstances occurring after the entry of the March 5, 2014, judgment.

In November 2015, the trial court entered a judgment in which it determined that the husband had failed to meet his burden for obtaining a modification of alimony. The court denied the husband's claim and awarded the wife $5,000 for attorney fees and costs. The husband appealed.

On appeal, the Court of Civil Appeals affirmed the judgment. Wilson v. Wilson, 262 So.3d 1192 (Ala. Civ. App. 2016). The Court of Civil Appeals held that alimony is subject to modification based only on those changes in income and living expenses of the parties that have occurred since the "judgment" in the most recent action in which either party attempted to obtain a change in alimony, regardless of whether that action resulted in a change, and not on the cumulative difference between current income and expenses and the income and expenses that provided the basis for whatever "award" was last made or modified. Judge Moore and Judge Thomas declined to embrace this rationale. Instead, Judge Moore concurred in the rationale in part and concurred in the result in a writing in which he concluded that the husband's claim was barred by the doctrine of res judicata. Judge Thomas joined Judge Moore's special writing.

This Court granted certiorari review to consider whether a decision as to the modification of periodic alimony is to be based on changes in circumstances since (1) the date that alimony was awarded or last modified or (2) the date of the most recent judgment disposing of a claim for modification of periodic alimony, regardless of whether that judgment yielded any such modification.

II. Standard of Review

" ‘ "On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. ..." Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala. 1996).’

" Ex parte Helms, 873 So.2d 1139, 1143 (Ala. 2003). ‘ "[O]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court's review is de novo." ’ Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala. 1999) (quoting Ex parte Graham, 702 So.2d 1215, 1221 (Ala. 1997) )."

Ex parte C.L.C., 897 So.2d 234, 236–37 (Ala. 2004).

III. Analysis

An obligation to pay alimony may be modified based upon a material change in circumstances in the financial needs of the payee spouse and/or in the financial ability of the payor spouse to respond to those needs. See Ex parte Ederer, 900 So.2d 424, 426 (Ala. 2004) ; Glover v. Glover, 730 So.2d 218, 220 (Ala. Civ. App. 1998).

The issue in this case is what is the appropriate baseline for evaluating such changes. That is, must a party seeking a modification of periodic alimony show a material change since the last judgment or order addressing a claim for modification of such alimony, even if no such modification was granted in that judgment? Or is it enough to show a material change in the parties' circumstances since the last judgment or order in which periodic alimony actually was awarded or modified. The husband cites Ex parte Boley, 392 So.2d 840 (Ala. 1981), McInnish v. McInnish, 441 So.2d 960 (Ala. Civ. App. 1983), and Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala. Civ. App. 1995), each of which addresses the standard for measuring modification of either alimony or child support by employing the same logic and rationale urged by the husband in the present case.

In contrast, the main opinion of the Court of Civil Appeals in the present case expressly rejects the rationale of Ex parte Boley and instead adopts the approach described in Taylor v. Taylor, 640 So.2d 971, 973 (Ala. Civ. App. 1994). Taylor stated simply that the party seeking modification of a periodic-alimony award must show "that a material change in the parties' circumstances has occurred since the trial court's last judgment or order." Id. at 973.

The husband's position is correct, both as a matter of equity and, based on a careful reading thereof, our precedents.

We begin by noting that Alabama cases have not made a clear distinction between the phrases "since the last judgment" and "since the last award." In point of fact, most prior decisions, despite employing one or the other of those phrases, do not in actuality address the intervening-judgment question but merely cite to or quote from cases that discuss the need to prove a material change in circumstances. This commonly is the case, because there has been no intervening judgment addressing a request for modification.³

As noted, the rationale embraced by this Court in Ex parte Boley is in fact the rationale urged by the husband.⁴ The parties in Ex parte Boley were divorced in 1970, and the husband was ordered to pay child support. In 1978, the wife filed a petition requesting an increase in child support, which the trial court denied. In 1979, the wife again petitioned the court for an increase in child support. A different circuit judge found that there had been no material change in circumstances since the judgment had been entered on the 1978 petition, although there had been a material change in circumstances since the parties' divorce in 1970. The judge refused to consider any changes in circumstances prior to the 1978 judgment and denied the wife's request.

The Court of Civil Appeals reversed the judgment, rejecting the proposition that "a trial court in deciding a child support modification petition is limited to the period since the last decree, whether it be one denying the modification petition or one modifying a prior child support decree."

Rowe v. Boley, 392 So.2d 838, 840 (Ala. Civ. App. 1980), aff'd, Ex parte Boley, supra. The Court of Civil Appeals went on to state:

"[W]e think the rationale of the above cited cases [ Womble v. Womble, 56 Ala. App. 318, 321 So.2d 660 (1975), and Clarke v. Clarke, 47 Ala. App. 558, 258 So.2d 902 (1972) ] persuasively suggests that the period within which the changed circumstances must have occurred extends back to the decree awarding child support or to the last decree modifying child support. Otherwise, a situation could occur, as did occur in the instant case, where the request for modification was denied because there were insufficient changed circumstances during the short period since the last modification petition was denied, whereas if the court could have considered those circumstances that had occurred since the child support award was made, it is likely that a different result would have been reached. The welfare of the children cannot be properly served without consideration of the totality of circumstances since they last received an order for support. The primary consideration is the need of the children. If the needs of the children and the ability of the father to respond to those needs have materially changed since the last award fixing the amount of support, the trial court should be able to consider those changes in fashioning its decree. Therefore, we conclude that the trial court erred in not considering those circumstances that had materially changed since the 1970 child support award."

392 So.2d at 840 (emphasis added).

This Court affirmed the Court of Civil Appeals' judgment. We summarized the Court of Civil Appeals' decision with approval as follows:

"[I]n considering a modification of child support payments, a court should consider all changes in circumstances since the last decree awarding or actually

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