Leverett v. Leverett

123 So. 3d 962, 2013 WL 1165375, 2013 Ala. Civ. App. LEXIS 72
CourtCourt of Civil Appeals of Alabama
DecidedMarch 22, 2013
Docket2111042
StatusPublished
Cited by1 cases

This text of 123 So. 3d 962 (Leverett v. Leverett) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leverett v. Leverett, 123 So. 3d 962, 2013 WL 1165375, 2013 Ala. Civ. App. LEXIS 72 (Ala. Ct. App. 2013).

Opinions

DONALDSON, Judge.

Robert Daniel Leverett (“the husband”) appeals from an order of the Dallas Circuit Court (“the trial court”) altering its judgment divorcing the husband and Debra Edmondson Leverett (“the wife”) and entering a judgment separation in response to the wife’s motion to alter, amend, or vacate the divorce judgment.

The husband and the wife were previously married and divorced. The couple remarried on May 7, 1993. The wife filed a complaint on June 16, 2011, seeking a divorce on the grounds of adultery, incompatibility, and an irretrievable breakdown of the marriage. See § 30-2-1, Ala.Code [963]*9631975. The husband answered and counterclaimed for a divorce on August 2, 2011, denying adultery as a ground for a divorce but seeking a divorce on the grounds of incompatibility and an irretrievable breakdown of the marriage. After engaging in discovery, the husband and the wife voluntarily mediated their claims and reached an agreement, entitled “Stipulations of Agreement” (“the stipulation”), which the trial court adopted and incorporated into its judgment of divorce, entered on February 7, 2012. The stipulation provides, in pertinent part:

“The parties agree that the Husband shall designate the Wife as his irrevocable spousal beneficiary for the sole purpose of obtaining health insurance benefits through the Husband’s miliary benefit as it applies to CHAMPUS/TRI-CARE and the Husband further agrees to pay the sum of $39.00 .. .per month toward the costs associated with this benefit pending approval by CHAM-PUS/TRICARE, which shall be subject to all military rules, guidelines, exemptions, limitations, and regulations with regard to the remarriage of the Wife and/or the retirement of the Husband. Further, the Husband shall execute any and all documents, registration forms, certificates, or other documents necessary to comply with the application of said benefits, and the Wife shall be responsible for making application through the [Defense Enrollment Eligibility Reporting System] and coordinating with the Husband for institution of the benefits.”

The stipulation further provides:

“Both the legal and practical effect of this agreement in each and every respect and the financial status of the parties have been fully explained to both parties by legal counsel of each party’s independent choice, and both parties acknowledge that the agreement is fair and not the result of any fraud, duress or undue influence exercised by either party upon the other or by any other person or persons upon either, and they further agree that this agreement contains the entire understanding of the parties, there being no representations, promises, warranties, covenants or undertakings other than those expressly set forth herein.”

On February 28, 2012, the wife moved the trial court, pursuant to Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate the judgment in part. The wife alleged that after, the entry of the judgment, the husband notified the provider of his military health-insurance benefits of their divorce, which caused her health care benefits to be terminated, contrary to the provisions of the stipulation. The wife claimed that “[fit was the clear intent of the parties that [there] be no interruption in the health-care coverage of the [wife] who is currently disabled and completely dependent upon her current health benefit as a spouse.” The wife alleged that the husband had not complied with the terms of the stipulation regarding health insurance for the wife. In her motion, the wife argued that the trial court “retain[ed] jurisdiction to grant relief from the judgment entered to provide that these parties are legally separated rather than divorced to allow and indeed to require that the [husband] continue military-based health services and insurance for the [wife] as contemplated by the parties and their mediator.” The husband, who is in the United States Air Force, responded to the wife’s motion, averring that he had in fact made arrangements for the wife to contact the appropriate military agency to continue her benefits, and that he had attempted to contact the wife to communicate to her that he had done so but that she, too, would have to communicate and cooperate [964]*964with the agency, but that the wife had failed to take the necessary steps to continue her benefits. Further, he noted that the wife had failed to provide any documentation indicating that she had been denied any benefits. The trial court held a hearing on the motion on May 17, 2012, which the parties continued by agreement to June 25, 2012. Because the husband was being deployed to Kuwait, he filed a motion for the trial court to proceed to ruling on the wife’s motion in his absence. In that motion, the husband further averred that the wife was ineligible to receive the desired military health benefits because the length of their marriage failed to meet the Department of Defense’s requirement of a 20 year marriage that overlaps with twenty years of military service during which the military spouse accumulates 20 years of “creditable service.” The husband attached as an exhibit to that motion a letter addressed to the wife from Edna Talley, a customer service representative with the United States Air Force. The letter was dated April 2, 2012, and stated that multiple attempts to contact the wife regarding her eligibility for benefits were unsuccessful and briefly explained the twenty-year requirements for qualifying to receive benefits.

The trial court held a hearing on June 25, 2012, at which the parties’ attorneys made brief statements regarding their positions on the case, but no testimony was taken and no documents were admitted into evidence. The trial court entered an order that day, altering its prior judgment; that order states, in its entirety:

“This matter came on to be heard on motion of the [wife] to ‘alter, amend, or [v]acate the Decree in part’ and this Court considering the arguments of counsel, the original Decree in this case signed on the 6th day of February, 2012 and filed for record on the 7th day of February, 2012 and the notations of the mediator attached to the Decree, finds that there is reason to alter the form of relief granted to the [wife] to accomplish the original intent of the parties hereto and therefore the prior Decree of the Court is amended hereby and shall become and the same is a Decree of Legal Separation.”

The husband timely filed this appeal.1

The standard of review of a post-judgment motion is well settled:

“The trial court has broad discretion in disposing of such motions, and its exercise of that discretion is presumed correct. Smith v. Smith, 656 So.2d 814 (Ala.Civ.App.1994). ‘Abuse of discretion by a trial court in granting a Rule 59(e)[, Ala. R. Civ. P.,] motion can be found only where a legal right was abused and the record plainly and palpably shows the trial court was in error.’ Lockhart v. Phenix City Investment Co., 488 So.2d 1353 (Ala.1986).”

Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ.App.1996).

The husband raises one issue on appeal: whether the trial court exceeded its discretion in substituting a judgment of legal separation for the previously entered judgment of absolute divorce. The husband argues, and the record supports, that “neither of the parties requested a legal separation and in fact, both the [wife] and the [husband] requested a Decree of Divorce in their individual pleadings....

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Related

Bearden v. DiGeronimo
195 So. 3d 963 (Court of Civil Appeals of Alabama, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
123 So. 3d 962, 2013 WL 1165375, 2013 Ala. Civ. App. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leverett-v-leverett-alacivapp-2013.