Rel: December 13, 2024
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, 2024-2025 _________________________
CL-2023-0924 and CL-2023-0925 _________________________
Brian James Merrick
v.
Brandi Rhodes Merrick
Appeals from Autauga Circuit Court (DR-18-900070.01 and DR-18-900070.02)
EDWARDS, Judge.
Brian James Merrick ("Brian") appeals from judgments entered by
the Autauga Circuit Court ("the trial court") in respective contempt
actions between him and Brandi Rhodes Merrick ("Brandi"). The parties
have been before us on several occasions, including in Merrick v. Merrick, CL-2023-0924 and CL-2023-0925
321 So. 3d 1268 (Ala. Civ. App. 2020) ("Merrick I"); Merrick v. Merrick,
352 So. 3d 770 (Ala. Civ. App. 2021) ("Merrick II"); and Merrick v.
Merrick, (No. CL-2022-0593, March 17, 2023) ("Merrick III"). A
discussion of the background to the parties' dispute is necessary to
provide context for our decision.
On December 26, 2019, the trial court entered an order divorcing
the parties, dividing their marital property, and awarding the wife
$2,800 per month as alimony. Regarding the marital-property division,
the December 2019 order provided that the parties must sell their real-
estate holdings and apply the net proceeds from those sales to loans
taken against a 401(k) account that was to be equally divided between
them. That order also provided that Brian was to pay Brandi $3,600 as
attorney fees. Brian appealed, and this court dismissed that appeal
because we determined that it had been taken from a nonfinal judgment. 1
See Merrick I.
1The December 2019 order had failed to adjudicate certain claims
by the parties against third parties; those claims eventually were severed from the divorce proceeding. 2 CL-2023-0924 and CL-2023-0925
After this court issued the certificate of judgment in Merrick I, on
December 2, 2020, the trial court entered a judgment that was generally
consistent with the December 2019 order. The December 2020 judgment
divorced the parties, divided the marital property, included provisions
regarding some additional property, and awarded Brandi "periodic,
rehabilitative" alimony in the amount of $2,800 per month for 60 months.
The December 2020 judgment made no findings addressing the alimony
award as required by Ala. Code 1975, § 30-2-57.
Brian appealed, and this court reversed the December 2020
judgment and remanded the case with instructions that the trial court
enter a new judgment incorporating findings as to the alimony award, in
compliance with § 30-2-57. See Merrick II. Following the issuance of this
court's certificate of judgment in Merrick II, the trial court, on March 22,
2022, entered an amended judgment in compliance with this court's
mandate, designating as rehabilitative alimony the alimony award of
$2,800 per month for 60 months. The trial court also ordered that Brian's
alimony obligation was deemed to have been commenced on January 1,
2020. Brian appealed from the March 2022 amended judgment, and this
3 CL-2023-0924 and CL-2023-0925
court affirmed that judgment, without a published opinion. See Merrick
III.
On August 13, 2020, while the appeal in Merrick I was pending,
Brandi filed a petition in the trial court requesting that Brian be held in
contempt for violating the terms of the December 2019 order ("Brandi's
action").2 Brandi's action was assigned case number DR-18-900070.01.
According to Brandi, Brian refused to deliver the keys to the "Hurricane
Deck Boat" that she had been awarded and had allowed that boat to
deteriorate based on his neglect; had refused to make available to her
certain personal property that she had been awarded; had failed to pay
his monthly alimony obligation; had failed to pay her the $3,600 attorney-
fee award; had withdrawn nearly the entire balance of the parties' 401(k)
retirement account; and had refused to allow her access to the parties'
lake house so that she could appraise it for purposes of determining its
value and condition in conjunction with its sale. Brandi requested that
2We have taken judicial notice of the records on appeal in Merrick
I, Merrick II, and Merrick III. 4 CL-2023-0924 and CL-2023-0925
an order be entered holding Brian in contempt and requiring him to pay
her attorney fees. Brandi subsequently amended her petition.
On October 16, 2020, Brian filed in Brandi's action an answer
denying the material allegations in Brandi's contempt petition, as
amended. Brian also filed a "Petition for Modification and Contempt"
that was assigned case number DR-18-900070.02 ("Brian's action").
Brian alleged that Brandi had not complied with the December 2019
order regarding the sale of the marital residence and had refused to agree
to accept a proposed offer that he had received regarding the sale of the
parties' lake house. He requested that the trial court enter an order
holding Brandi in contempt, requiring her to list the marital residence
for sale, and requiring that any offer received on the parties' lake house
that would satisfy the mortgage on that property must be accepted.
Brian also requested an award of attorney fees. Brandi filed in Brian's
action an answer denying the material allegations of Brian's petition.
On November 24, 2020, Brandi filed a motion to consolidate her
action and Brian's action, and the trial court entered an order
consolidating the cases. As noted above, the trial court entered the
5 CL-2023-0924 and CL-2023-0925
divorce judgment on December 2, 2020. Neither party formally amended
their respective pleadings in the present cases to reflect the entry of that
judgment, but it appears that the pleadings subsequently were amended
by implied consent. See Rule 15(b), Ala. R. Civ. P.
On December 3, 2020, the attorney who had closed the sale of the
parties' lake house filed in Brian's action a request that he be allowed to
interplead the proceeds from that sale into court because of the parties'
competing claims to those proceeds. The trial court subsequently entered
an order in Brandi's action and in Brian's action setting a hearing
regarding the disposition of the lake-house sale proceeds and regarding
whether Brandi should be held in contempt. Brandi personally appeared
at that hearing, and Brian appeared virtually. After that hearing, on
February 23, 2021, the trial court entered an identical order in Brandi's
action and in Brian's action ("the February 2021 order") that stated that
"the closing documents [for the sale of the parties' lake house] listed $10,114.50 in fees not associated with [Brandi] as [Brian] had an agreement with a sale agent where [Brandi] was not a part of the agreement. The property sold through [Brandi's] contact with purchaser and not [Brian's]. [Brian] had stopped paying for the monthly payments for the lake home and his failure to pay caused a reduction in net equity."
6 CL-2023-0924 and CL-2023-0925
The February 2021 order also included a determination that Brian had
wrongfully removed $29,500.00 from the parties' 401(k) retirement
account, leaving only $39 in that account, and had not paid the attorney-
fee award to the wife pursuant to the December 2020 judgment, as
amended. Also, the February 2021 order required the closing attorney to
pay the proceeds from the sale of the parties' lake house into court, less
$10,114.50, which the trial court required the closing attorney to hold
pending further order. The trial court then set a hearing in Brandi's
action and in Brian's action regarding the division of the proceeds from
the sale of the parties' lake house, effectively reflecting that Brian's
pleadings had been amended to reflect various claims that he had
asserted regarding those proceeds. See Rule 15(b). The February 2021
order did not address Brandi's contempt claim against Brian but stated
that the "contempt issue" in Brian's action was moot.
On March 2, 2021, the closing attorney for the sale of the parties'
lake house filed a notice in Brian's action that stated that he had paid
the proceeds to the trial-court clerk pursuant to the February 2021 order;
that payment apparently did not include the $10,114.50 that the trial
7 CL-2023-0924 and CL-2023-0925
court had required the closing attorney to hold pending further order.
Thereafter, Brandi sold the marital residence, and Brian filed a motion
in his action requesting that she be required to deposit the net sale
proceeds into her attorney's trust account. Thereafter, the parties'
dispute regarding their respective claims to the net proceeds from the
sale of the marital residence and the lake house continued through
motion practice.
On March 15, 2022, the trial court entered an order in Brian's
action; that order addressed Brian's "motion on the house equity and lake
home equity" and stated that, based on an agreement of counsel, the net
proceeds from the sale of the marital residence were to be split equally.
One-half of the proceeds were to be paid into the trust account of Brandi's
attorney and the remaining proceeds held by the closing attorney for the
sale of the parties' lake house were to be paid into the trust account of
Brian's attorney. The division of all proceeds held by Brandi's attorney
was to be determined based on further proceedings, as were the issues of
Brian's past-due alimony obligation and his claim to certain credits
against his obligations to Brandi. On April 4, 2022, the closing attorney
8 CL-2023-0924 and CL-2023-0925
for the sale of the parties' lake house filed a notice in Brian's action; the
notice stated that he had paid the remaining proceeds from that sale to
the trust account of Brandi's attorney.
On May 18, 2023, the trial court entered an order in Brandi's action
and in Brian's action setting "all pending issues … for final disposition"
on May 25, 2023. On May 24, 2023, Brian's attorney filed in Brian's
action a motion to continue that stated:
"2. Undersigned counsel would show the Parties are in agreement to the terms of this case, with the only remaining issue being calculation of the exact amounts owed after funds held in trust by [Brian's] attorney are applied.
"3. When the Agreement of the Parties is final the Parties' respective counsel will email said Agreement to Your Honor for final approval and ratification."
The motion requested a continuance "pending submission of the Parties
Settlement Agreement." The hearing scheduled for May 25, 2023,
apparently was not held.
On June 16, 2023, the trial court entered in Brandi's action an
order that stated: "Any numbers for the Court?????" On September 7,
2023, the trial court entered in Brandi's action an order that stated:
"Have we gotten a settlement ready for the Court????" Thereafter, the 9 CL-2023-0924 and CL-2023-0925
trial court entered an order in Brandi's action and in Brian's action
setting the case for a hearing on a motion for a status conference that had
been filed by Brandi in her action. That hearing was held on October 17,
2023, and, that same day, the trial court entered an order in Brandi's
action that stated: "Case called, settled, Order to follow."
On November 6, 2023, the trial court entered an order in Brandi's
action and in Brian's action that stated: "After the hearing, have the
parties gotten together on the proper numbers for the Order in these
cases??????" On November 27, 2023, Brandi's attorney appears to have
filed in Brandi's action a proposed order, but that proposed order is not
included in the record on appeal. On November 28, 2023, the trial court
entered a judgment in Brandi's action based "upon the Court hearing
arguments of counsel in addition to receiving evidence, ore tenus." The
November 2023 judgment stated that the parties had stipulated that the
proceeds from the sale of the parties' lake house, i.e., $67,732.43, were
being held by the trial-court clerk and that "[t]he parties agree[d] that
[Brandi] shall be entitled to said funds, and therefore it is ordered that
the [clerk] shall remit said funds to the trust account of [Brandi's
10 CL-2023-0924 and CL-2023-0925
attorney]." The November 2023 judgment stated that the parties also
had stipulated that $59,859.66 that was already being held in Brandi's
attorney's trust account was awarded to Brandi and that Brian owed
Brandi $135,450 in past-due alimony and the $3,600 in attorney fees as
described in the December 2020 judgment. The November 2023
judgment continued:
"5. The parties argued on record as to what amounts [Brian] should be given credit for regarding the following matters: (a) the value of the 2004 Hurricane Deck Boat; (b) the value of the deck boat trailer; (c) the value of [his] unpaid lake house mortgage payments; (d) [Brandi's] request for attorney's fees for the pending contempt case. As to each of these matters, the Court hereby finds as follows:
"(a) The Court finds [Brandi] is entitled to $33,451 for the … Hurricane Deck Boat, which represents the fair market value of said boat prior to [Brian's] neglect which led to said boat being in a salvage state and it is so ordered.
"(b) The Court finds [Brandi] is entitled to $825.00 for the deck boat trailer from [Brian].
"(c) The Court finds [Brandi] is entitled to $2,000 from [Brian] for his failure to make mortgage payments on the lake house and it is so ordered.
11 CL-2023-0924 and CL-2023-0925
"(d) The Court finds [Brandi] is entitled to $13,178.53 in attorneys fees from [Brian] for this pending contempt matter, and it is so ordered.
"(e) The Court finds [Brian] is due to be credited with half the lake house proceeds in the amount of $33,866.22 and credit for proceeds from the sale of [the marital residence] still held in trust in the amount of $49,745.16, for a total credit of $83,611.38.[3]
"6. Based upon the above findings, after all just credits have been given, the Court hereby finds and orders [Brian] owes [Brandi] the total sum of $145,313.63, for which [Brandi] may collect through income withholding order. Said amount is reduced to a judgment whereby execution may issue. All other relief requested but not herein addressed is hereby denied and this Order is a Final Order."
On December 13, 2023, the trial court entered a judgment in Brian's
action that stated: "Issues herein disposed in [Brandi's action] on
November 28, 2023[.] ... Case is dismissed."
On December 28, 2023, Brian filed an identical postjudgment
motion in Brandi's action and in his action ("the postjudgment motion").
The postjudgment motion referenced several attached exhibits, but none
3$49,745.16 was the net proceeds of the sale of the marital residence, after reducing the $59,859.66 held in Brandi's attorney's trust account, by $10,114.50. 12 CL-2023-0924 and CL-2023-0925
of those exhibits reflect that they had been previously admitted into
evidence. Brian contended that the "findings of 'stipulations' by the
parties" was not correct and that he had "stipulated to the funds being
held in trust by [the clerk], … by [Brandi's attorney], the award of
attorney fees from the original divorce, and that there were fourteen …
months remaining on the original award of alimony. There was no
stipulation to the amount owed for unpaid alimony." He also contended
that no testimony or evidence supported certain determinations made by
the trial court, that the trial court's calculation of what he owed Brandi
was incorrect, and that, using the amounts referenced in the November
2023 judgment, he would have owed her only $104,843.15 after the
referenced credits were applied. He also contended that he was entitled
to certain additional credits and that his past-due alimony obligation
should have been $45,924.81, although his calculations included no
amount for the interest that was due on the past-due amount. According
to Brian, based on the credits that he alleged he was due or the amounts
that he claimed should have been included in or removed from the trial
court's calculations, the trial court should have determined that he owed
13 CL-2023-0924 and CL-2023-0925
Brandi an amount significantly lower than the amount the trial court
had awarded or that she owed him $6,481.11 or $10,381.11.
Contemporaneously with the filing of the postjudgment motion,
Brian filed a separate notice of appeal in Brandi's action and in his action.
The notices of appeal were held in abeyance pending a ruling on the
postjudgment motion. See Rule 4(a)(5), Ala. R. App. P. Brandi filed a
response to the postjudgment motion that included purported copies of e-
mail exchanges between her attorney and Brian's attorney that had
occurred between October 31, 2023, and November 17, 2023. See
discussion, infra. The postjudgment motion was denied by operation of
law, see Rule 59.1, Ala. R. Civ. P., quickening Brian's appeals. The
appeal in Brandi's action was assigned appeal number CL-2023-0924; the
appeal in Brian's action was assigned appeal number CL-2023-0925.
This court entered an order consolidating the appeals, ex mero motu.
Brian makes three arguments on appeal. However, we find his first
argument to be dispositive, namely, that the trial court entered the
November 2023 judgment purportedly based on evidence that had been
presented ore tenus when, in fact, no ore tenus proceedings were
14 CL-2023-0924 and CL-2023-0925
conducted as to the remaining matters in dispute after May 2023. Any
judgment as to the claims discussed in the November 2023 judgment
should have been based solely on the terms of the parties' settlement
agreement regarding the "proper numbers," if any. See Grayson v.
Hanson, 843 So. 2d 146, 151 (Ala. 2002).
The e-mail exchanges between the parties' respective attorneys
after the October 2023 hearing and before the entry of the November
2023 judgment indicate that the parties may have reached a settlement
agreement, including as to the amount of attorney fees owed by Brian to
Brandi regarding her contempt claim, but those e-mail exchanges were
not before the trial court when it entered the November 2023 judgment,
and, on the record before us, we cannot reconcile the terms included in
those exchanges with the terms of the November 2023 judgment. For
example, based on the e-mail exchanges between the parties' respective
attorneys, it appears that Brian was due a credit of $13,680.04 for
alimony that he had paid to Brandi, among other credits discussed in
those exchanges. Also, certain dollar amounts are in conflict -- the e-mail
exchanges state that the "Hurricane Deck Boat" had a value of $33,400
15 CL-2023-0924 and CL-2023-0925
and the November 2023 judgment stated the value as $33,451, and the
e-mail exchanges stated that the trailer for that boat had a value of $885
and the November 2023 judgment stated the value as $825. More
importantly, however, the calculations used by the trial court in the
November 2023 judgment would result in a judgment against Brian for
$104,893.15 ($135,450 + $3,600 + $33,451 + $825 + $2,000 + $13,178.53
= $188,504.53 - $83,611.38 = $104,893.15), rather than the $145,313.63
stated in that judgment, although the latter is consistent with the final
amount discussed in the e-mail exchanges that had incorporated
additional claims and credits between the parties.
A judgment based on a purported settlement agreement must be
based upon evidence that a settlement has been reached and must be
consistent with the terms of such settlement. See Williams v. Williams,
318 So. 3d 508, 513-14 (Ala. Civ. App. 2020). Based on the record before
us, however, assuming a settlement was reached, the November 2023
judgment was not consistent with the purported terms of such a
settlement that can be gleaned from the record, and the trial court held
no hearing at which Brian's attorney might have indicated that Brian
16 CL-2023-0924 and CL-2023-0925
had agreed to the terms that were incorporated into the November 2023
judgment. In any event, the November 2023 judgment was not, as it
stated, the result of ore tenus proceedings that addressed the parties'
disputes regarding their settlement calculations. Accordingly, the
November 2023 judgment is reversed, and the cases are remanded for
proceedings consistent with this opinion.
CL-2023-0924 -- REVERSED AND REMANDED WITH
INSTRUCTIONS.
CL-2023-0925 -- REVERSED AND REMANDED WITH
Moore, P.J., and Hanson and Fridy, JJ., concur.
Lewis, J., recuses himself.