Joseph Messina v. Christine Agee
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REL: 04/17/2020 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 CIVIL APPEALS OCTOBER TERM, 2019-2020 _________________________ 2180718 _________________________ Joseph Messina v. Christine Agee _________________________ 2180733 _________________________ Christine Agee v. Joseph Messina Appeals from Jefferson Circuit Court (DR-04-792.01) 2180718 and 2180733 MOORE, Judge. Joseph Messina ("the former husband") appeals from a judgment entered by the Jefferson Circuit Court ("the trial court") in a postdivorce enforcement action. Christine Agee ("the former wife") cross-appeals to the extent that the trial court declined to award her interest on the judgment entered in her favor. judgment. As to the appeal, we affirm the trial court's With regard to the cross-appeal, we reverse the trial court's judgment and remand the cause. Facts and Procedural History The parties were divorced by a judgment entered by the trial court on July 25, 2006. judgment, the trial court In paragraph 30 of the divorce awarded the former wife "her Wachovia 401k account and all other retirement accounts in her name." In paragraph 33 of the divorce judgment, the trial court ordered: "[The former wife] is awarded the sum of Fifty Nine Thousand Seven Hundred Fifty Dollars ($59,750.00) from the parties' American Express [i]nvestment account to be transferred within thirty (30) days of this Order and the [former husband] is awarded the remaining balance."1 1 The At the time the divorce judgment was entered, the investment account was with American Express; however, by time 2 2180718 and 2180733 divorce judgment was subsequently amended to, among other things, specifically award the former wife all individual retirement accounts in her name. On July 15, 2016, the former wife filed a petition for a rule nisi or, in the alternative, for an accounting and the entry of a judgment in her favor. She asserted that the former husband had paid her only $16,156.04 toward the $59,750 that she had been awarded in paragraph 33 of the divorce judgment. The former husband answered the former wife's petition on July 25, 2016. At the trial, the undisputed evidence indicated that the American Express investment account ("the investment account") had been composed of several subaccounts, some of which had been owned by the former wife and some of which had been owned by the former husband. The former wife testified that the subaccounts owned by her were two life-insurance policies and two individual retirement accounts. by the husband, he listed the In an exhibit introduced value of the individual retirement accounts, as of September 30, 2005, as $14,104.49 and $4,410.40, respectively. The former wife testified that of the present action, it was with by Ameriprise Financial, Inc. 3 2180718 and 2180733 she had "received all of the life insurance that [she] had or may have had under the ... investment account." The former husband's exhibit listed the combined cash value of those life-insurance policies as $22,444.65, as of September 30, 2005. The undisputed evidence also indicated that, in December 2006, the former husband had paid the former wife $16,156.04. The former husband testified that he had determined that amount by subtracting the value of the life-insurance policies and the individual retirement accounts awarded to the former wife from the $59,750 figure set forth in paragraph 33 of the divorce judgment.2 The former wife, however, contended that she had been awarded the $59,750 in addition to the value of the two life-insurance policies and the two individual retirement accounts. After a trial, the trial court entered a judgment on December 28, 2018, providing, in pertinent part: 2 The former husband testified that, in calculating the amount he owed to the former wife, he had used more "up to date" values for the life-insurance polices and individual retirement accounts than those values reflected on the September 30, 2005, statement. The former husband's attorney explained that, at the time of the trial of the enforcement action, the September 30, 2005, values were the only values available to the former husband. 4 2180718 and 2180733 7. That neither the Final Judgment of Divorce nor the Order amending said [judgment] required the [former husband] to pay [the former wife] $16,156.04 or any similar sum in which this Court can reasonably determine that [the former husband] was attempting to pay. The only outstanding amount this Court could determine that was owed to [the former wife] at said time was the $59,750.00. "8. [The former wife] contends that the $59,750.00 awarded to her was from accounts belonging solely to the [husband] as [the former wife] was awarded her Wachovia 401(k), [and] all other retirement accounts and [individual retirement accounts]. As such, [the former wife] did not have any control over the ... [i]nvestment account to pay herself or transfer the $59,750.00 in which she was awarded from said accounts. "9. That according to the September 30, 2005 Statement from the ... [i]nvestment account that was introduced into evidence, there were several accounts all listed in the parties' individual names with separate account numbers. There were no joint accounts listing both parties' names or the other party as a custodian of any of the other party's accounts. "10. That [the former husband] admitted to writing [the former wife] the $16,156.04 check and noted during his testimony that there were more up-to-date statements from ... [the investment account] that were used at the divorce trial and which [the former husband] had available to him at the time he wrote [the former wife] the check. "11. [The former husband] further testified that he wrote the $16,156.04 check to [the former wife] based upon the 2006 [investment account] Statement as he had gotten rid of the older statements when he cleaned out the marital residence for it to be sold. 5 2180718 and 2180733 "12. [The former husband] further admitted that during the divorce proceedings he had taken money out of the ... [i]nvestment account therefore[] causing a reduction in the value of said account at the time of the divorce trial. "13. [The former husband] testified that some of the accounts with Ameriprise [formerly known as] American Express were easily liquidated and not as taxable. [The former husband] specifically used the term 'fungible.' "14. [The former husband] testified that some of the accounts were not retirement accounts, but money market accounts that he was personally using and at the time of the divorce trial the 'fungible' accounts had a balance of zero (0). "15. [The former husband] testified that the only way he could come up with the $59,750.00 was to liquidate. The Court notes that this is the same amount specifically awarded to [the former wife] in Paragraph 33 of the Final Judgment of Divorce. "16. [The former husband] testified that he had to write the $16,156.04 check to [the former wife] from his checking account and that he was trying to do what the ruling said. "Upon consideration of the pleadings, ore tenus sworn testimony, and other evidence presented, the Court hereby finds that although Paragraph 33 of the Final Judgment of Divorce did not specifically require the [husband] to perform the act of paying [the former wife] the $59,750.00 from the ... [i]nvestment account or to transfer said funds, the [former husband] thought he was under the duty to make said payment and/or transfer and tried to satisfy the obligation owed to [the former wife] by voluntarily assuming the duty to perform and paying to [the former wife] $16,156.04. 6 2180718 and 2180733 "The Court further finds that the only ... [i]nvestment accounts that the funds awarded to [the former wife] could have been paid out of and/or transferred from were from accounts belonging solely to the [former husband] in which [the former wife] did not have the authority or ability to perform the act of paying and/or transferring said funds to herself. "The Court finds that the award to [the former wife] as written in Paragraph 33 of the Final Judgment of Divorce is not a judgment for which this Court can grant any award of statutory interest as said sum was never reduced to a judgment nor did said decree note the name of a person or an entity in which said judgment was to be rendered against. ".... "... That [the former husband] is hereby ordered to pay to [the former wife] the remaining balance owed from the $59,750.00 that was awarded to [the former wife] from the ... [i]nvestment account as noted in Paragraph 33 of the Final Judgment of Divorce. "... That [the former husband] shall be given credit for the $16,156.04 [the former husband] paid to [the former wife] in December 2006, leaving the [former husband] with a balance of $43,593.96 to be paid to the [former wife]." Both parties timely filed postjudgment motions; those motions were denied on April 2, 2019. appealed on May 13, 2019. The former husband The former wife cross-appealed on May 24, 2019. 7 2180718 and 2180733 Discussion On appeal, the former husband argues that the trial court erred in ordering him to pay to the former wife "the remaining balance owed from the $59,750.00 that was awarded to [the former wife] from the ... [i]nvestment account as noted in Paragraph 33 of the Final Judgment of Divorce." "A trial court has the inherent power to interpret, implement, or enforce its own judgment. Helms v. Helms' Kennels, Inc., 646 So. 2d 1343 (Ala. 1994); Grayson v. Grayson, 628 So. 2d 918 (Ala. Civ. App. 1993). Generally, a trial court may not modify a property division more than 30 days after the entry of the judgment. Rule 59, Ala. R. Civ. P.; Russell v. Russell, 386 So. 2d 758 (Ala. Civ. App. 1980). However, if a provision in a divorce judgment is ambiguous, the court may interpret or clarify the judgment, and the clarification is not considered a modification of the judgment. Mullins v. Mullins, 770 So. 2d 624 (Ala. Civ. App. 2000)." Hallman v. Hallman, 802 So. 2d 1095, 1098 (Ala. Civ. App. 2001). In the present case, the plain language of the divorce judgment provides that the former wife was "awarded ... $59,750.00[] from the ... [i]nvestment account to be transferred within thirty (30) days of this Order and the [former husband] is awarded the remaining balance." with the trial court that, because 8 there were We agree no joint 2180718 and 2180733 subaccounts in the investment account, "the only ... [i]nvestment accounts that the funds awarded to [the former wife] could have been paid out of and/or transferred from were from accounts belonging solely to the [former husband] in which [the former wife] did not have the authority or ability to perform the act of paying and/or transferring said funds to herself." Therefore, the divorce judgment contemplated that the $59,750 be paid from the former husband's subaccounts. The divorce judgment did not provide for that amount to be reduced by retirement the value accounts of or the the former wife's individual life-insurance policies. Accordingly, the trial court's judgment ordering the former husband to pay $59,750 less the $16,156.04 that he had already paid (i.e., $43,593.96) is affirmed. In her cross-appeal, the former wife argues that the trial court judgment. erred by not awarding her interest on As noted previously, the trial court found "that the award to [the former wife] as written in Paragraph 33 of the Final Judgment of Divorce is not a Judgment for which this Court can grant any award of statutory interest as said sum was never reduced to a judgment nor did said decree note the name of a person or an entity in which said Judgment was to be rendered against." 9 the 2180718 and 2180733 However, the trial court clearly found that the funds were to be paid out of accounts owned by the former husband. In Self v. Self, [Ms. 2171024, May 10, 2019] ___ So. 3d ___, ___ n.19 (Ala. Civ. App. 2019), this court recognized that "[a]n unpaid property settlement incorporated into a divorce judgment may accrue interest so long as it is unpaid and the judgment fixes the amount owed." In the present case, the property award in the divorce judgment was for a specific amount, i.e., $59,750. Therefore, we conclude that the trial court erred in declining to award postjudgment interest to the former wife. Conclusion Based on the foregoing, we affirm the trial court's judgment to the extent that it ordered the former husband to pay to the former wife "the remaining balance owed from the $59,750.00 that was awarded to [the former wife] from the ... [i]nvestment account as noted in Paragraph 33 of the Final Judgment of Divorce." We reverse the trial court's judgment to the extent that it declined to award the former wife postjudgment interest on the $43,593.96 ($59,750 - 16,156.04) that the former husband was ordered to pay, and we remand the 10 2180718 and 2180733 cause for the trial court to calculate the amount of postjudgment interest owed to the former wife. 2180718 -- AFFIRMED. 2180733 –- REVERSED AND REMANDED WITH INSTRUCTIONS. Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur. 11
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