Due Process and Proving Income in Divorce

Lee’s note – 5/5/17: This note was originally based on a version of the court’s opinion that has since been withdrawn. On April 7, 2017, after rehearing, the appeals court withdrew that opinion and substituted a now one in its place. I have left the note in place, but I have added at the end a quick summary of the new language from the new opinion.

Wesley Person earned $40 million playing basketball in the NBA. Unfortunately, his success on the court didn’t transfer successfully to his life off the court. He ended up unemployed and with his marriage in divorce court. Because he and his wife could not or did not agree quietly on the terms of their divorce, we now know more than we need to about his financial affairs, cataloged and discussed in the case of Person v Person, DR 2150225 (Ala. Civ. App. January 20, 2017).

For students of domestic relations law, the case provides an excellent demonstration of the mundane requirements of complying with procedural due process and proving income in divorce. The trial court had entered a pendente lite order in the form of a temporary restraining order (often shortened by lawyers to the term “TRO”) after the wife had filed for divorce but before the complaint had been served on the husband. The TRO set child support at $6,000 per month and alimony at $10,000 per month. There’s no mention in the opinion of efforts to convert the TRO later to a permanent order. The husband made no payments at all in compliance with it.

By the time the case was tried, the arrearage on the child support and alimony stood at $320,000. The trial court set the arrearage but did not describe any plan to pay it. The trial court divided the couple’s property and ordered the husband to pay alimony of $1,000 per month and child support of $2,500 per month.

The husband argued on appeal that that original pendente lite order was void because it didn’t comply with Ala. Rule Civ. Proc. 65(b). Specifically, Rule 65(b) requires that to support an order without notice to the other party requires proof in affidavit or verified complaint that immediate and irreparable harm will result to the applicant before the adverse party or his attorney can be heard in opposition. It also requires that the applicant’s attorney certify to the court the efforts made to give notice to the adverse party and the reasons supporting the claim that notice should not be required.

Because the record contained neither of these essentials, the appeals court agreed with the husband that the order was void. It therefore reversed the trial court’s order setting the arrearage. The appeals court reversed the trial court’s order of child support because “there is no evidence of the parties’ incomes or of the needs of the children in the record.” The appeals court pointed out that, on remand, the trial court could choose to make the order of child support retroactive to the filing of the wife’s complaint for divorce.

The appeals court reversed the trial court’s alimony order because there was no evidence in the record demonstrating the wife would be unable to meet her needs absent alimony. And finally, because alimony and property division are interrelated, the appeals court reversed the trial court’s order on property division.

So now this case goes back to the trial court, where an angry but wiser judge will take evidence on the incomes of each party,  the need of the wife for alimony, and the needs of the children. Then the trial court will issue a new order spelling out its findings and issuing orders for child support, alimony, and property division.

Summary of changes in April 7 opinion: The court does not appear to have made any significant substantive changes in its ruling. There is no longer an invitation to the trial court to make the award of child support or alimony retroactive to the filing date, but neither is there any specific bar to a retroactive order. The appeals court does include language in its revised opinion pointing out that at the hearing on the husband’s postjudgment motion, the wife seemed to believe the portion of the marital estate awarded to her would be adequate to provide for her support (implying that alimony may not be needed).

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