Billy J. Stewart v. Kimberly Sutton

Rel: March 31, 2023

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) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
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Billy J. Stewart

v.

Kimberly Sutton

Appeal from Elmore Circuit Court
(DR-01-552.07)

THOMPSON, Presiding Judge.

Billy J. Stewart ("the father") appeals from a judgment entered by

the Elmore Circuit Court ("the trial court") that denied his request to

modify the judgment divorcing him from Kimberly Sutton ("the mother"),

that held him in contempt for failing to pay postsecondary-education
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expenses as ordered in the divorce judgment, and that awarded the

mother $16,324.62 for unreimbursed postsecondary-education expenses

and an attorney fee. We affirm the trial court's judgment insofar as it

held the husband in contempt, and awarded the mother an attorney fee

in the amount of $4,500; we reverse the judgment insofar as it awarded

the mother $16,324.62 for unreimbursed postsecondary-education

expenses, and we remand the case with instructions.

The father and mother married on July 14, 1997. One child was

born of the marriage on March 31, 1999. On January 28, 2002, the trial

court entered a judgment divorcing the father and the mother. The

divorce judgment incorporated a "separation/settlement" agreement

executed by the parties. That agreement provided in pertinent part:

"9. [The father and the mother] agree to share equally
[the costs of] the [postsecondary] education of [the child],
whether said education by state college, vocational or
technical school. Said costs include tuition, room and board,
and living expenses for a state college or university for [the
child] until the child attains an undergraduate degree or
reaches his twenty-first birthday [March 31, 2020], whichever
occurs last.

"….

"22. Should either party violate this agreement, upon
judicial finding of such violation, the violating party shall be

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responsible for the payment of all costs, expenses of litigation
and attorney's fees made necessary by such violation."

On January 27, 2020, the father filed a petition, seeking among

other things, modification of the divorce judgment regarding his

obligation to pay the child's postsecondary-education expenses. 1 In his

petition, the father asserted that a material change in circumstance had

occurred that warranted a modification in his financial obligations

because he had retired effective January 2020 and his income had

reduced significantly. He further asserted with regard to his obligation

to pay one-half of the child's postsecondary-education expenses that

although he had attempted to ascertain the costs of tuition, books, and

other expenses to comply with that obligation, he had not been able to

obtain any copies of statements or evidence indicating the costs the child

had incurred and the father's portion of those costs. The father asked the

trial court to order the parties to provide written notice of any paid

expenses for the child's postsecondary education to the other party no

later than the tenth day of the subsequent month that the expense had

1The record indicates that the divorce judgment had been modified
previously on December 31, 2013. The modification made in that order,
however, is not relevant to resolution of this appeal.
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been paid. The father also asked the trial court to add as a condition of

a party's obligation to pay the child's postsecondary-education expenses

that the child maintain a "C" average.

On June 17, 2020, the mother filed an answer and a counterclaim.

The mother asserted that she had submitted to the father several of the

child's postsecondary-education expenses for reimbursement and that

the father had refused or failed to reimburse her for those expenses as

ordered in the parties' divorce judgment. She asked the trial court to find

the father in contempt for failing to abide by the divorce judgment. On

June 22, 2020, the father filed an answer denying the allegations in the

mother's counterclaim.

On March 31, 2021, at the beginning of the final hearing, the

following occurred:

"The parties are here with their respective counsel. And the
court has pretried the matter to an extent in the back. ...
[W]e're here basically on what the court's interpretation are
on expenses and the agreement that was entered by the
parties back in 2001. What we're going to do is the parties are
going to submit the exhibits. A number of questions were
asked about the circumstances, they're going to submit the
exhibits and let the court interpret based on the exhibits and
the relief requested what the relief is. Does that pretty much
sum it up counsel?

"[The father's counsel]: Yes, sir.

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"[The mother's counsel]: Yes, Judge."

The trial court then admitted into evidence various documents and

provided a designated period for the parties to submit additional

documents and an allotted time for the parties to respond to the

additional documents. The documents admitted into evidence at the

hearing included e-mails from the mother to the father from 2017, when

the child had started his postsecondary education, requesting that the

father reimburse her for his portion of postsecondary-education expenses

that she had considered "room and board, and living expenses." The

record reflects that the parties did submit additional documents

addressing the payment or nonpayment of the child's postsecondary-

education expenses. An invoice from mother's attorney was submitted

indicating that the mother had incurred an attorney fee in the amount of

$6,080 for the underlying litigation.

On April 9, 2021, the father filed a motion asking the trial court to

enter a final judgment. In his motion the father alleged that before he

retired, he had "routinely overpaid" the mother, but since he had retired,

his income had reduced, and he no longer had the income to pay for the

child's "books, medical expenses, and other random expenses." He

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argued that when he had agreed to pay the child's postsecondary-

education expenses, he thought he would be involved in making decisions

about the child's postsecondary education, but the mother and the child

had "made every decision without consulting" him, including increasing

the child's expenses by allowing the child to live in an apartment instead

of living in the school's housing. The father asked the trial court to order

him to pay the mother $11,000.89 if it found that he should be responsible

for the school housing or $13,853.22 if it found that he should be

responsible for the apartment rate.

On February 18, 2022, the trial court entered an order finding that

"[t]he parties have shown potential to earn certain levels of income and

the obligations of the parties were known at the time of retirement," 2 that

"no evidence [indicates] that either party was unable to comprehend the

terms [of the settlement agreement] to which they agreed," that the

terms of the agreement are clear, and that the mother had "incurred the

larger portion of the college expenses to-date." Considering those

findings, the trial court denied the father's petition to modify the father's

2The record reflects that the mother had also retired while the child
was pursuing his postsecondary education.
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obligation to pay one-half of the child's postsecondary-education

expenses. The trial court further held the father in contempt for failing

to pay agreed upon postsecondary-education expenses as ordered in the

divorce judgment, awarded the mother $16,324.62 in unreimbursed

postsecondary-education expenses, and awarded the mother an attorney

fee "made necessary by this action" in the amount of $4,500.

Both parties filed postjudgment motions. In his postjudgment

motion, the father argued, in pertinent part, that the finding of contempt,

the award of $16,324.62 for past-due postsecondary-education expenses,

and the award of an attorney fee were not supported by and were against

the weight of the evidence. The parties' postjudgment motions were

denied operation of law, see Rule 59.1, Ala. R. Civ. P., and the father filed

a timely notice of appeal.

" '[W]here there are no disputed facts and where the judgment is

based entirely upon documentary evidence, our review is de novo. ' " Sims

v. Sims, 218 So. 3d 1285, 1289 (Ala. Civ. App. 2016)(quoting E.B. Invs.,

L.L.C. v. Pavilion Dev., L.L.C., 212 So. 3d 149, 162 (Ala. 2016), citing in

turn Weeks v. Wolf Creek Indus., Inc., 941 So. 2d 263, 268-69 (Ala. 2006)).

"A de novo review is 'a review without any assumption of correctness.'

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King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So. 2d

714, 716 (Ala. 1987)." Ex parte Dekle, 991 So. 2d 1257, 1260 (Ala. 2008).

On appeal the father contends that the trial court's judgment

insofar as it awarded the mother the relief requested in her counterclaim

is void. Specifically, the father argues that the mother never invoked the

trial court's jurisdiction over her counterclaim because she did not pay a

filing fee. He cites Hicks v. Hicks, 130 So. 3d 184, 189 (Ala. Civ. App.

2012), for the proposition that if a party does not pay a filing fee when he

initiates a contempt action, the trial court lacks subject-matter

jurisdiction over the action. However, in Hudson v. Hudson, 178 So. 3d

861, 869 (Ala. Civ. App. 2014), this court specifically held

"[T]he failure to pay a filing fee does not divest the trial court
of jurisdiction over a counterclaim. A trial court may, in its
discretion, stay any proceedings on a counterclaim in order to
ensure payment of the filing fee, and a counterclaim
defendant may move the trial court to do so. However, a trial
court does not act without jurisdiction if it fails to take such
steps before adjudicating a counterclaim, even upon a motion
of a counterclaim defendant."

Accordingly, the trial court had jurisdiction to adjudicate the mother's

counterclaim, and its judgment is not void for lack of subject-matter

jurisdiction.

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In his reply brief, the father contends that, if the judgment is not

void, the trial court exceeded its discretion by finding him in contempt

for failing to reimburse the mother for his portion of the child's

postsecondary-education expenses. " 'Ordinarily, we do not consider

issues raised for the first time in a reply brief.' McGough v. G & A, Inc.,

999 So. 2d 898, 905 n.3 (Ala. Civ. App. 2007)." Chancellor v. White, 34

So. 3d 1270, 1273 (Ala. Civ. App. 2008). See also Sorrell v. King, 946 So.

2d 854, 867 (Ala. 2006); and Byrd v. Lamar, 846 So. 2d 334, 341 (Ala.

2002)(noting the "settled rule that this Court does not address issues

raised for the first time in a reply brief"). Thus, we decline to consider

this argument raised by the father for the first time in his reply brief.

The father also contends that the trial court exceeded its discretion

by awarding the wife an attorney fee. In this case, the parties agreed

that if a party violated the divorce judgment, that party would be

"responsible for the payment of all costs, expenses of litigation and

attorney's fees made necessary by such violation." Because the trial court

found the father in contempt for failing to reimburse the mother for the

child's postsecondary-education expenses as ordered in the divorce

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judgment,3 we cannot conclude that the trial court exceeded its direction

by awarding the mother an attorney fee in the amount of $4,500. Willis

v. Willis, 329 So. 3d 650, 663 (Ala. Civ. App. 2020)(holding that "the trial

court did not exceed its discretion in ordering the mother to pay attorney

fees to the father's counsel as a result of the mother's civil contempt").

Last, the father contends that the trial court's finding that he owed

the mother $16,324.62 for unreimbursed postsecondary-education

expenses is not supported by the record. In support of his contention, the

father cites to Camacho v. Camacho, 280 So. 3d 1077, 1080 (Ala. Civ. App.

2019).

In Camacho, this court reversed the trial court's award of past-due

child support and alimony because we could not determine from the

record how the trial court had calculated the past-due amounts. We

stated:

"On appeal, the mother argues that the trial court erred
in its calculations regarding the payment of the father's child-
support obligation and its resulting determination that the
father had 'paid all child support as previously ordered.' She

3We note that in his April 9, 2021, motion requesting the trial court
to enter a final judgment, the father, by asking the trial court to
determine the amount that he needed to reimburse the mother for the
child's housing, indicated that he was aware that he had not complied
with that financial obligation as ordered in the divorce judgment.
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also contends that the trial court erred in determining that
the father was entitled to a credit of $15,082.18 toward his
total alimony arrearage and that the father's alimony
arrearage was improperly calculated.

"Using the figures contained in the record on appeal,
this court has made an effort to recreate the trial court's
calculations so that this court might arrive at results at least
similar to those the trial court reached in determining that
the father was not in arrears on his child-support obligation.
Similarly, despite attempting a number of different
calculations using different figures, this court has been
unable to determine how the trial court concluded that the
father was entitled to a credit of $15,082.18 against his
alimony arrearage.

"In Hildesheim v. Velaski, 769 So. 2d 920, 923 (Ala. Civ.
App. 1999), this court reversed that portion of a judgment that
determined a party's child-support arrearage after this court
was unable to determine from the evidence how the trial court
had reached its total when it calculated the arrearage. See
also Kuhn v. Kuhn, 706 So. 2d 1275 (Ala. Civ. App. 1997). In
this case, any calculations by this court would be based on
speculation as to what the trial court used as its starting
point, how it derived certain credits, and how it reached its
ultimate conclusions that the father had paid 'all child
support as previously ordered' and that he had an alimony
arrearage in the amount of $29,117.82. Because we are unable
to ascertain from the record how the trial court reached its
conclusions regarding the amount the father owed the mother
for past-due child support and alimony, we reverse the
judgment and remand this cause to the trial court for it to
review its calculations. In entering a new order, we ask that
the trial court articulate the figures it uses to make its
calculation in determining the father's arrearages, if any.
Hildesheim, supra. See also Kiker v. Probate Court of Mobile
Cty., 67 So. 3d 865, 868 (Ala. 2010) (remanding cause for an
explanation as to how an attorney fee was calculated)."

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Camacho, 280 So. 3d at 1079-80.

As we did in Camacho, this court has attempted to determine how

the trial court in this case reached its calculation that the father owed

the mother $16,324.65 for unreimbursed postsecondary-education

expenses. The documents submitted into evidence indicate that the

mother sought reimbursement for a variety of postsecondary-education

expenses. We cannot determine which expenses the trial court

determined fell within the scope of the reimbursable postsecondary-

education expenses. Additionally, some of the documents indicate that

the father reimbursed the mother for certain expenses; other documents

indicate that he did not. Thus, any calculations by this court would be

based on speculation as to what expenses the trial court determined fell

within the scope of reimbursable postsecondary-education expenses and

what amounts the trial court determined the father had or had not paid.

Because we are unable to discern from the record how the trial court

reached its conclusion that the father owed the mother $16,324.65 for the

unreimbursed postsecondary-education expenses, we reverse that

portion of the judgment awarding the mother $16,324.65 for those

expenses. Camacho, supra. We remand the cause for the trial court to

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review its calculations. In the new order, we ask that the trial court

articulate the figures it uses to make its calculation in determining the

father's arrearage. Camacho, supra.

For the foregoing reasons, we affirm the trial court's judgment

insofar as it holds the father in contempt for failing to pay

postsecondary-education expenses as ordered in the divorce judgment,

and awards the mother an attorney fee in the amount of $4,500. We

reverse the trial court's judgment insofar as it awards the mother

$16,324.62 for the child's unreimbursed postsecondary-education

expenses and remand the cause for proceedings consistent with this

opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

WITH INSTRUCTIONS.

Moore, Edwards, Hanson, and Fridy, JJ., concur.

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