Revisiting the Schiesz Case

I have egg on my face. The Alabama Court of Civil Appeals has withdrawn its opinion in the Schiesz case I told you about in February and substituted a new opinion. No problem there. But in reviewing the revised opinion, I realized that I misread its predecessor. I apologize.

I told you that the parties had divorced in January of 2005. I should have said they were already divorced and that the trial court ruled on postjudgment issues in 2005.

Now let’s get to the appeals court’s revised opinion in Schiesz v. Schiesz, Case No. 2041024 (Ala Civ. App. May 5, 2006). The appeals court changed its ruling on the timeliness of the appeal because there was an agreement from the parties that had been omitted from the record. Once the trial court granted the wife’s motion to supplement the record by including the agreement, the appeals court had before it an agreement extending the time and therefore deemed it had jurisdiction.

The appeals court affirmed the trial court’s order requiring the husband to pay a child support arrearage and an alimony arrearage. In a move that’s rare these days, the appeals court also ordered the husband to pay the wife a $2,000 attorney’s fee on appeal. In its opinion, the appeals court cited evidence from the record indicating that:

  • The husband had the ability to earn more income but manipulated a partnership agreement with his new wife to reduce his income.
  • The husband missed several months of alimony and child support payments and allowed them to remain delinquent even when he received large cash payments he could have used to get current.
  • Each month without fail, the husband made the maximum contribution to his 401(k) plan, even while paying no child support or alimony.
  • The husband’s apparent scheming and manipulation could have reduced his credibility in the eyes of the court, giving the trial court reason to accord more weight to the wife’s testimony than to that of the husband.
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