Wikle v. Boyd

297 So.3d 1255

Jonathan B. WIKLE

v.Hilary BOYD

2180283

Court of Civil Appeals of Alabama.

December 20, 2019

Charles Neville Reese of Reese & Reese Attorneys, P.C., Daleville, for appellant.

Jason R. Brogden of The Brodgen Law Firm, L.L.C., Ozark, for appellee.

EDWARDS, Judge.

Jonathan B. Wikle ("the former husband") and Hilary Boyd ("the former wife") were divorced by a 2011 judgment ("the 2011 divorce judgment") of the Dale Circuit Court ("the trial court"), which incorporated an agreement of the parties ("the divorce agreement") relating to the division of their assets. The divorce agreement reads, in pertinent part, as follows:

"(1) SUPPORT:

"(A) That no periodic or rehabilitative spousal support shall be paid by the [former] husband to the [former] wife.

"(2) DIVISION OF ASSETS and PROPERTY SETTLEMENT:

"(A) The parties shall have all right, title and interest in, and to any personal property, they now have in their possession, and that each of the parties now has, in their possession, the personal property they want and desire[,] and they hereby ratify that division of personal property.

"(B) Specified Property Settlement; Specialized Monetary Obligations Provisions:

"(i) Hereby deemed as a property settlement by the parties, the [former] husband agrees to be responsible for, maintain and thus pay for the [former] wife's current future household bills and other typical/traditional living expenses for the next seven (7) years beginning on November 1st, 2011, and continuing for a period for seven (7) total years. Said bills shall be payable from the [former] husband's military base pay as detailed on his ‘LES’, and any supplementary payments/bonus/stipends received from the United States Military. If the [former] husband is discharged, honorably or dishonorably from his employer, he shall not be relinquished from any said responsibilities detailed below. The [former] wife's bills and/or living expenses include but are not limited to her:

"(A) Household bills/utilities:

"1) Rent/Mortgage payments (approximately $840.00),

"2) Power (Pea River Electric -- approximately $250.00),

"3) Water (Culligan -- approximately $60.00),

"4) Gas (SouthEast AL Gas -- approximately $25.00),

"5) Cable & Internet (Cobridge Communications approximately $85.00),

"6) Home Phone (Century Tel -- approximately $110.00),

"7) Trash (Ozark Utilities Board -- approximately $60.00),

"8) Pest Control (Orkin -- approximately $36.00),

"9) ADT Security (approximately $28.99),

"10) Lawn Care (True Green -- approximately $65.00), and

"(B) Other:

"1) Cell Phone payments (AT&T -- approximately $272.00),

"2) ‘Petsmart’ health insurance for the parties' animals,

"3) ‘Banfield’ wellness plan (approximately -- $31.95),

"4) Gym Membership (Synergy -- approximately $37.79).

"(ii) If the [former] wife relocates her principle [sic] place of residence, prior to the cessation of the seven (7) year period, the [former] husband shall still be responsible for all the new and reasonable household and other bills as set out in paragraph ‘i’ above. The [former] husband shall additionally be responsible for said debts; notwithstanding increased rates due to inflation and/or geographical location of the [former] wife's proposed residence or due to the standards of living in the community she so chooses to reside.

"(iii) This agreement was made based on a culmination in [sic] the totality of circumstances of the parties' current standard of living demonstrating that:

"1) the [former] husband ... has a clear ability to pay both his and the [former wife's] household and other bills/debt for the outlined time period;

"2) the [former] wife's need for said bills to be paid based on her status as a college student;

"3) the obvious great disparity in [in]come between the parties; and

"4) Based upon the fact that the [former] husband has been the primary financial provider for the [former] wife since 1999.

"(iv) This specific provision of paragraph (2)(B), and all subsections, is entered into by the parties because it shall maintain the ‘status quo’ for each the [former] husband and [the former] wife upon ratification and incorporation of this agreement into a final decree. Moreover, the parties have specifically taken into account the:

"1) standard of living during the course of the marriage;

"2) future prospects, potential for maintaining their standard of living after their divorce;

"3) age and gender of each;

"4) health of each party;

"5) length of marriage;

"6) source or sources of their common property.

"(v) The [former] husband is active military, and barring unforeseen circumstances, he shall so be employed in the same or higher ranking [sic], position for the next seven (7) years with the United States Military; and therefore, the [former] husband hereby agrees to subtract the total of bills due, as listed in this on behalf of the [former] wife, from the total amount received pursuant to his current ‘LES.’ (Including all supplemental pay - BAH, BAS, BAQ, Combat pay, etc ...). The remaining balance shall be equally split amongst the parties. The agreement to pay debts/bills on behalf of the [former] wife shall be deemed a property settlement and is a voluntary, knowing, and an intelligent agreement between the parties. Both parties herein acknowledge and fully understand to [sic] these provisions, and further believe it is in the best interest and welfare of both the [former] husband and [the former] wife to agree to said provisions.

"(vi) The [former] husband shall be responsible for timely payment(s) of all the [former] wife's bills/debts listed in ‘i’ above. If applicable, the [former] wife shall provide the [former] husband with a legible copy of all bills/receipts receive[d] in regard to the aforementioned household and other bills within fourteen (14) days of receipt. Thereafter, the [former] husband shall make full payment thereof within fourteen (14) days of receipt of said bills. However, if the [former] husband directly receives said bills from the debtor [sic], he shall directly make such payments to the company and/or person to whom the debt is owed and immediately provide the [former] wife with a legible copy of the bill and proof of payment of the aforementioned bill(s). Additionally, the [former] husband shall provide the [former] wife with a copy of his military pay stub (i.e., ‘LES’ each month), along with a list of total monthly bills paid [o]n her behalf directly or indirectly thereby demonstrating the remaining finances which the parties have agreed to split equally. The [former] husband shall pay to the [former] wife 50% of the remaining balance of his income as demonstrated on his LES by the end of the first week of each month. This shall continue for a period of seven (7) years, and shall not be modifiable unless specifically mutually agreed upon by the parties.

"(vii) This monetary obligation shall not be deemed as either periodic or rehabilitative spousal support; and thus, may not be terminable if the [former] wife remarries or co-habitats [sic] with a member of the opposite sex as defined under Alabama law."

In March or April 2017, the former husband stopped paying the former wife amounts that she claimed he owed her under the terms of the 2011 divorce judgment, and the former wife filed in the trial court a complaint seeking to have the former husband held in contempt and seeking enforcement of several provisions of the 2011 divorce judgment. The former husband answered the former wife's complaint, contending, among other things, that the former wife had concealed certain facts at the time of the execution of the divorce agreement. The former husband also sought a modification of the 2011 divorce judgment, based upon the former wife's remarriage in 2013, to terminate the payments due to her under paragraph (2)(B) of the divorce agreement, which he characterized as support and maintenance payments.

At trial, the former husband contended that the trial court could "relieve a fraud in the formation of a divorce," asserting, essentially, that a part of his answer to the former wife's complaint had been a "defensive" Rule 60(b), Ala. R. Civ. P., motion requesting an order setting aside the 2011 divorce judgment based on the former wife's alleged misrepresentation about her relationship with another man at the time of the execution of the divorce agreement and the entry of the 2011 divorce judgment. Because the former husband contended that he had discovered the former wife's alleged fraud in early 2017, he argued that he had two years from that date to seek to set aside the divorce judgment. See Spindlow v. Spindlow, 512 So. 2d 918, 920 (Ala. Civ. App. 1987) (explaining that Ala. Code 1975, § 6–2–3, applies to permit the extension of the three-year limitations period for bringing an independent action under Rule 60(b) on the ground of fraud for up to two years after the discovery of the fraud). In addition, the former husband, who had only recently retired from active duty in the United States Army at the time of the trial, asserted that 50 U.S.C. § 3936(a), a part of the Servicemembers' Civil Relief Act, codified at 50 U.S.C. § 3901 et seq., tolled any limitations period under Rule 60(b) until he was no longer an active-duty servicemember, thus permitting him to bring his Rule 60(b) claim regardless of the expiration of any limitations period.

After the conclusion of the trial, the trial court entered a judgment that, among other things, found the former husband in contempt of certain provisions of the 2011 divorce judgment and ordered him to pay certain sums to the former wife. The trial court also denied the former husband's request to set aside the 2011 divorce judgment on the ground of fraud. The trial court specifically found that the former husband had not filed a Rule 60(b) motion and that, if the statement regarding fraud in his answer could be construed as a Rule 60(b) motion, the motion was untimely. In addition, the trial court rejected the application of § 3936(a),...