Jennifer Dyas Reed v. Matthew Dyas
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Rel: 07/02/2009 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF C I V I L APPEALS SPECIAL TERM, 2009 2071211 Jennifer Dyas Reed V. Matthew Dyas Appeal from Mobile Circuit Court (DR-04-501158.01) THOMPSON, Presiding Judge. Jennifer Dyas Reed ("the wife") appeals from the trial court's denial of her motion seeking to have Matthew Dyas ("the husband") held in contempt for his alleged failure to pay certain debts pursuant to the parties' divorce judgment. 2071211 The parties were divorced in July 2004. In the divorce judgment, the trial court awarded the wife the parties' 1999 Saturn automobile; it awarded the husband the parties' 2001 Nissan pickup vehicles.^ truck and their The trial court debt on all the vehicles. 2003 Suzuki four-wheeler ordered the husband to pay the The husband was awarded custody of the parties' children. The evidence is undisputed that, sometime after the divorce judgment was entered, the husband asked the wife to allow him to have the Saturn automobile in exchange for the pickup truck because he needed the passenger children. The wife agreed. About two space for the months after the exchange, the husband traded the Saturn automobile for a new vehicle. He also stopped making the required payments on the pickup truck and the four-wheelers. The husband acknowledged that he had stopped making the required reason or payments. During excuse his for his testimony, action, and the he provided record does no not ^It is not clear from the record whether two or three four-wheeler vehicles were awarded to the husband; however, the specific number of vehicles is not relevant for a determination of the issue on appeal. 2 2071211 otherwise reflect any basis, such as an inability to pay, for the husband's decision to stop making the payments. The vehicles at issue were purchased in the wife's name. Since the husband stopped making the payments, the wife has received numerous telephone calls and letters from creditors, many threatening to pursue legal action against her to recover the balance of the outstanding debts. In November 2007, the wife filed a petition to modify the divorce judgment. The husband then filed a counterclaim for modification of child support. In response, the wife amended her petition to include a motion for contempt based upon the husband's failure to pay the debts on the vehicles as required by the divorce judgment. parties' denied respective the wife's An ore tenus hearing was held on the petitions, after which petition for the trial modification, court granted the husband's petition, and denied the wife's motion for contempt, stating that "both parties have deviated from the Court's order regarding said vehicles." The wife discretion contends that the in denying her motion trial court exceeded its for contempt because, she says, the undisputed evidence demonstrated that the husband 2071211 had failed judgment. to pay the debts as required by the divorce We agree. "'Civil contempt' is defined as a 'willful, continuing failure or refusal of any person to comply with a court's lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.' Rule 70A(a)(2)(D), Ala. R. Civ. P. The determination of whether a party is in contempt is within the sound discretion of the trial court, and that determination will not be reversed absent a showing that the court exceeded the limits of its discretion. Stack v. Stack, 646 So. 2d 51 (Ala. Civ. App. 19 9 4 ) . " Routzong v. Baker, , [Ms. 2070987, April 17, 2009] (Ala. Civ. App. 2009). So. 3d "'The failure to perform an act required by the court for the benefit of an opposing party constitutes civil contempt. ' Carter v. State ex rel. Bullock County, 393 So. 2d 1368, 1370 (Ala. 1981)." J.K.L.B. Farms, LLC V. Phillips, 975 So. 2d 1001, 1012 (Ala. Civ. App. 2007). Furthermore, "'[t]he purpose of a civil contempt proceeding is to effectuate compliance with court orders and not to punish the contemner. ' Civ. App. 1997)." Watts v. Watts, 706 So. 2d 749, 751 (Ala. Hall v. Hall, 892 So. 2d 958, 962 (Ala. Civ. App. 2 004) . The divorce judgment states that it incorporated an agreement between the parties as to the division of marital 2071211 property. "[A] into a divorce settlement [judgment] agreement which is incorporated is in the nature of a contract." Smith V. Smith, 568 So. 2d 838, 839 (Ala. Civ. App. 1990). The husband's obligation to pay the outstanding debt on all of the vehicles pursuant to the parties ' agreement did not end when the parties exchanged vehicles, which, we note, was at the husband's request. obligation under the The husband appears to recognize his divorce judgment In his appellate brief, his sole response to the wife's argument is that "[t]he Court did not say that debt--but only [the former husband] did not owe the that he was not in contempt." The husband malies no assertion that he has resumed paying the debts, or that he even intends to pay the debts. "'Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sus t ained. ' United States v. United Mine Worliers of Alabama America, 330 U.S. 258, 303-04 (1947 courts have reiterated that a civil-contempt determination may be used to encourage a contemner's future compliance with court orders . Chestang v. Chestang, 769 So. 2d 294 (Ala. 2000); Pate v. Guy, 134 So. 2d 1070 (Ala. Civ. App. 2005)." J.K.L.B. Farms, 975 So. 2d at 1012 2071211 In this case, the evidence is undisputed that the husband stopped making the payments on the vehicles that the trial court had ordered him to pay in the divorce judgment. The parties' decision to exchange vehicles without returning to court to obtain permission vehicles. The husband failed to perform an act required of the divorce outstanding judgment for therefore, he was in contempt. balances the owed benefit of on on his to by the no bearing obligation him pay to do so had those the wife; The trial court exceeded its discretion in finding otherwise. Accordingly, wife's motion for that portion contempt is of the judgment reversed, and denying the remanded for the trial court to enter a judgment cause the is consistent with this opinion. REVERSED AND REMANDED. Pittman, Bryan, Thomas, and Moore, JJ., concur.
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