Montgomery v. Montgomery (Ex parte Montgomery)

79 So.3d 660

Ex parte Clark Daniel MONTGOMERY.(In re Cynthia C. Montgomery

v.Clark Daniel Montgomery).

2100670.

Court of Civil Appeals of Alabama.

Aug. 26, 2011.

Eric B. Funderburk of Law Offices of Funderburk & Lane, Phenix City, for petitioner.

Melissa B. Thomas, Phenix City, for respondent.

BRYAN, Judge.

Clark Daniel Montgomery (“the husband”) filed a petition for a writ of mandamus seeking relief from a Qualified Domestic Relations Order (“QDRO”) entered by the Russell Circuit Court. We grant the petition in part and deny it in part.

Procedural History of Prior Appeal

This is the second time that the husband and Cynthia C. Montgomery (“the wife”) have appeared before this court. We set forth the pertinent procedural history of this case in Montgomery v. Montgomery, 37 So.3d 168 (Ala.Civ.App.2009), as follows:

“The parties were married on July 17, 1975, and they were divorced by the trial court on May 11, 1999. [The divorce action was assigned case no. DR–99–138.] The parties executed a written agreement regarding the division of their marital property on April 5, 1999, and the divorce judgment incorporated the parties' written agreement. The parties' agreement provided, among other things, that the wife would receive an award of the husband's retirement benefits, as follows:

“ ‘9. RETIREMENT: The Wife is hereby awarded 35% of the Husband's retirement excluding his Social Security. Said award shall include any increases that the husband may get prior to and following the time he begins to draw his retirement benefits.

“ ‘10. 401K FUND: The Wife is hereby awarded $15,000.00 of the husband's 401K fund.... This decree meets the definition of a [QDRO] as specified in ERISA Section 206(d) and Internal Revenue Code 414(p)....’

“The record contains a QDRO signed and entered by the trial court on May 13, 1999, regarding the retirement benefits set forth in paragraph 10 of the parties' agreement. Neither the parties' written agreement nor the divorce judgment provided for a QDRO to be entered to implement the provision set forth in paragraph 9 of the parties' agreement.

“On May 11, 2005, at the request of the wife, [in case no. DR–99–138,] the trial court entered a QDRO regarding the payment of the retirement benefits set forth in paragraph 9 of the parties' agreement (‘QDRO # 2’). QDRO # 2 stated, in pertinent part:

“ ‘[T]hat [the wife] is entitled to receive a benefit from [the Basic Retirement Plan for Employees of Army & Air Force Exchange Service] of a benefit payable to [the wife] that is equivalent in value to 35% of [the husband's] accrued benefit due to benefit service between July 17, 1975 and January 1, 1999, commencing on the earliest date on which [the husband] could commence receiving benefits if [the husband] separated from service.’

“(Emphasis added.) The husband did not object to the entry of QDRO # 2, despite the fact that he apparently never received formal notice of the wife's request for the trial court to enter QDRO # 2....

“On December 14, 2007, two and one-half years after the trial court had entered QDRO # 2, the wife filed a motion to amend QDRO # 2. She stated that QDRO # 2 erroneously stated that the ‘benefit service dates' were between July 17, 1975, and January 1, 1999. The wife argued that, pursuant to paragraph 9 of the parties' agreement as incorporated into the divorce judgment, she was entitled to 35% of the husband's retirement benefits from July 17, 1975, until the date of the husband's retirement, including any increases he received ‘prior to and following the time he began to receive retirement benefits.’ The wife's motion included a certificate of service stating that the motion had been mailed to the husband at an address in Texas. It was undisputed that the wife had not paid any filing fees related to the proceeding resulting in QDRO # 2 or the proceeding seeking to amend QDRO # 2.

“On February 8, 2008, [in case no. DR–99–138,] the trial court ‘set aside’ QDRO # 2 and entered an amended QDRO (‘QDRO # 3’), which stated that the wife

“ ‘is entitled to receive a benefit from [the Basic Retirement Plan for Employees of Army & Air Force Exchange Service] of a benefit payable to [the husband] that is equivalent in value to 35% of the [husband's] accrued benefit due to benefit service between July 17, 1975 and the date of the [husband's] retirement, commencing on the earliest date on which the [husband] could commence receiving benefits if the [husband] separated from service.’

“(Emphasis added.)

“On February 26, 2008, the husband filed a motion to set aside QDRO # 3....

“....

“On May 16, 2008, the wife initiated a separate action[, which was assigned case no. DR–99–138.01,] requesting that the trial court issue a rule nisi and hold the husband in civil and criminal contempt for failing to pay the wife 35% of the retirement benefits that he had been receiving, in violation of the divorce judgment entered by the trial court in 1999.

“....

“On December 31, 2008, the trial court entered an order stating that QDRO # 2 ‘contained a misstatement of the agreement of the parties.’ The trial court also ruled on the wife's petition for a rule nisi and held that the husband was not in contempt for failure to pay retirement benefits to the wife. The trial court ordered that QDRO # 3 was ‘in full force and effect.’ The husband and the wife filed timely notices of appeal to this court.

“On appeal the husband argue[d] that the trial court did not have jurisdiction to enter QDRO # 2 or QDRO # 3 because he was not properly served with summonses or notice of the wife's petitions and because the wife did not pay new filing fees.... The wife cross-appeal[ed] and argue[d] that the trial court erred in concluding that the husband was not in contempt without conducting an evidentiary hearing.”

37 So.3d at 169–72 (footnotes omitted).

Regarding the husband's appeal, which addressed issues in case no. DR–99–138, we concluded that “a trial court has the inherent power to issue a QDRO subsequent to the entry of a divorce judgment in an effort to implement or enforce the judgment or to render the divorce judgment effective.” Id. at 172 (citing Jardine v. Jardine, 918 So.2d 127, 131–32 (Ala.Civ.App.2005)). However, we further concluded that the trial court did not have subject-matter jurisdiction to enter QDRO # 2 or QDRO # 3 because the filing of a QDRO, under the circumstances presented, required that the wife file a separate action, pay an appropriate filing fee, and give proper notice of her requests for a QDRO to the husband because she was seeking to implement or enforce the divorce judgment through a QDRO. Id. at 172. We held that the trial court's judgment of May 11, 2005, which purported to enter QDRO # 2 was void, and that the trial court's judgment of February 8, 2008, purporting to enter QDRO # 3 was void, and we dismissed the husband's appeal with instructions to the trial court to vacate the orders entered on May 11, 2005, and February 8, 2008. Id. at 173.

Regarding the wife's cross-appeal, which addressed issues in case no. DR–99–138.01, we reversed the judgment of the trial court that denied the wife's petition for a rule nisi “[b]ecause the trial court heard no evidence regarding the allegations set forth in the wife's petition for a rule nisi and because there is no evidence in the record to support the trial court's finding that the husband was not in contempt....” Id. at 174. We remanded the cause with instructions to the trial court to conduct an evidentiary hearing on the wife's petition for a rule nisi. Id. This court issued a certificate of judgment on November 18, 2009.

Procedural History of Present Case

The husband filed this petition for a writ of mandamus based on events that occurred after his previous appeal was dismissed and the case was returned to the trial court on remand.

The materials provided by the parties indicate that, on remand, the wife filed motions to compel the husband to respond to discovery requests in the contempt action (case no. DR–99–138.01).

On or about October 11, 2010, the wife, in case no. DR–99–138.01, filed a motion for implementation of a QDRO. The wife alleged that the husband was retired and drawing benefits but that she had not been receiving the portion of the husband's retirement benefits that she had been awarded pursuant to paragraph nine of the agreement incorporated into the parties' divorce judgment (hereinafter referred to as “paragraph nine of the divorce judgment”), which is quoted above in the excerpt from Montgomery, supra. The wife requested that the trial court enter a QDRO so that her portion of the husband's retirement benefits would be paid directly to her. The wife attached a proposed QDRO as an exhibit to her motion.

On October 14, 2010, the husband filed a motion to dismiss the wife's motion for implementation of a QDRO. The husband alleged that the trial court did not have jurisdiction to alter or amend the QDRO that was previously entered (presumably QDRO # 3) because this court had concluded that that QDRO was void; that the wife's motion for implementation of a QDRO was an attempt to amend a prior QDRO; and that the wife must file a petition to modify the parties' divorce judgment, pay the appropriate filing fees, and serve the husband with the petition. The husband stated in his motion to dismiss that the motion was filed “without submitting to the jurisdiction of [the trial court] and without waiving the right to assert the defense that the [husband] has not been served by proper process as required by law.”

On October 27, 2010, the wife filed a motion for a hearing on the pending motions. Judge George Greene, the judge who had been assigned the case, set a hearing on all pending motions for January 2011, but that hearing was continued until March 16, 2011. On March 16, 2011, another judge, Judge Albert Johnson, who was the Presiding Judge of the Russell Circuit Court, entered an order that stated:

“It...