David Emory Gilbert v. Katherine Yates Gilbert (Appeal from Morgan Circuit Court: DR-20-900394.01). ( 2024 )

Rel: January 5, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________
CL-2022-1232
_________________________
David Emory Gilbert
v.
Katherine Yates Gilbert
Appeal from Morgan Circuit Court
(DR-20-900394.01)
PER CURIAM.
David Emory Gilbert ("the former husband") appeals from a
judgment entered by the Morgan Circuit Court ("the trial court") finding
him in criminal contempt.
CL-2022-1232
On April 22, 2021, the trial court entered a judgment divorcing the
former husband and Katherine Yates Gilbert ("the former wife"). The
divorce judgment provided in pertinent part:
"This cause was called for trial on April 12, 2021. The
parties appeared with their attorneys and announced a
settlement agreement concerning the pending issues. The
terms of the agreement were announced in open court and
each party acknowledged the terms announced were, in fact,
their agreement.
"Upon consideration thereof, the court finds that the
agreement of the parties is due to be and hereby is approved
and due to be entered as an order of the court. …
"….
"4. The parties shall share the true joint legal and
physical custody of the parties' minor child. …
"….
"[The former husband] shall directly pay [the former
wife] child support in the amount of $300.00 per month on or
before the first day of each month beginning June 12, 2021.
"….
"The parties currently reside in the same home.
Therefore, the parties are not required to follow the
custody/exchange schedule until June 12, 2021."
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On May 27, 2021, the former wife filed a petition for an order
finding the former husband in contempt of court.1 In her petition, the
former wife alleged in pertinent part that she and the former husband
had agreed that she could reside at the former marital residence until
June 12, 2021. She further alleged that the husband had changed the
locks and that she could no longer access her personal possessions. She
maintained that because of the former husband's conduct she had been
forced to reside with her parents and to expend funds to replace items of
necessity for her and the child. She asked the trial court to find the
former husband in contempt, to order him to pay for child support for
May 2021 and for the unexpected expenses that she had incurred because
of his actions, and award her an attorney fee.
On June 25, 2021, the former husband filed an answer in which he
admitted that on May 17, 2021, he had changed the locks on the former
marital residence "due to [former wife's] destructive and inappropriate
behavior in [the former marital residence.]"
1The former wife also asked the trial court to modify the divorce
judgment. The former husband's appeal, however, does not challenge the
trial court's judgment insofar as it modified the divorce judgment.
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The hearing was conducted on September 28, 2021, and October 22,
2021. The following evidence was adduced regarding the former wife's
claim of contempt. The former wife testified that she and the former
husband had agreed in open court at the settlement hearing that she
could reside at the former marital residence until June 12, 2021, and that
because she and the child would be residing with the former husband at
the former marital residence his child-support obligation would not begin
until June 12, 2021. She admitted that the trial court had not included
the agreed-upon provision that allowed her to reside at the former
marital residence until June 12, 2021, in the divorce judgment.
The former wife testified that on Thursday, May 13, 2021, she "filed
a warrant" containing allegations of harassment against the former
husband. According to the former wife, after filing the warrant, she
stayed at her mother's house for the weekend. When she returned to the
former marital residence on Tuesday, May 18, 2021, her key would not
unlock the door. She stated that she had sent the former husband a text
message asking for access to the former marital residence so that she
could get ready for work. According to the former wife, the former
husband responded that she could no longer reside at or have access to
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the former marital residence. He also informed her that if she wanted
any property from the marital residence, she needed to make a list of the
property and send the list to him, after which he would leave the
requested property on the porch of the former marital residence. The
former wife testified that she had repeatedly informed the former
husband that she had not moved from the former marital residence and
had repeatedly asked him for access to her personal property. The former
wife admitted that on the evening of May 18, 2021, she retrieved a trash
bag containing her personal possessions that the former husband had
placed on the porch and that the former husband had allowed her that
evening, accompanied by a law-enforcement officer, to enter the former
marital residence and retrieve a few items.
According to the former wife, because the former husband had
denied her access to the former marital residence and had refused to
allow her to retrieve her personal possessions, she had had to purchase
over $3,000 worth of personal items, including clothes, a hair dryer,
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makeup, and toys for the children. 2 She further testified that she had
incurred an attorney fee pursuing this litigation.
The former husband testified that although he had agreed to allow
the former wife to reside at the former marital residence until June 12,
2021, the former wife had damaged the former marital residence. He
explained that he had changed the locks of the former marital residence
on May 17, 2021, to prevent her from accessing the house and damaging
it further. According to the former husband, when the former wife
arrived at the former marital residence on the evening of May 18, 2021,
she was "free to take whatever," and he did not prevent her from going
through the house with a law-enforcement officer and removing her
personal property. He, admitted however, that most of the former wife's
possessions remained at the former marital residence. He further
insisted that the former wife had always had access to her personal
property because he had stored her property in the garage of the former
martial residence and she had a garage opener. The former wife disputed
this testimony.
2The record indicates that the former wife had a child from a former
marriage.
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The former husband conceded that the divorce judgment provided
that he did not have to pay child support until June 12, 2021, because he
had agreed to allow the former wife to reside in the former marital
residence until then. He admitted that because he had prevented the
former wife from residing at and accessing the former marital residence,
he owed the former wife child support for May 2021 and that she had
incurred unanticipated expenses for her and the children the past few
months.
The trial court, with the consent of the parties, reviewed the record
of the April 12, 2021, settlement hearing and stated on the record:
"I listened to [a recording of the settlement hearing], and the
first thing on the recording stated that [the former wife] had
60 days [or until June 12, 2021,] to move from the [former
marital residence], although I will note that was not included
in [the divorce judgment] based on the agreement read
allowed in court. So, everything else from that oral agreement
made at the trial date of the divorce action, if I remember
right, all of the rest of that appeared to be in [the divorce
judgment.] Nonetheless, for purposes of the record in this
case, I do find that that was part of the oral agreement of the
parties."
On July 12, 2021, the trial court entered its final order. The trial
court found, in pertinent part, that at the April 12, 2021, settlement
hearing,
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"[t]he parties agreed on the record that [the former wife]
would have sixty (60) days from the date of that hearing to
move from the [former] marital residence. That 60-day time
period was representative of the time it would take for [the
former wife's] oldest child to finish the school year. It is
undisputed that [the divorce judgment] did not contain the
provision and the same appears to be an oversight by the court
in drafting [the divorce judgment]. Nonetheless, it is clear
that the parties in fact agreed that [the former wife] would
have sixty days to move from the former marital [residence]
and the court orally affirmed the parties' agreement on the
record. There was a clear meeting of the minds in this regard
and the remainder of [the divorce judgment] supports the
[former] wife's position."
The trial court found the former husband in criminal contempt for
preventing the former wife access to the former marital residence and
sentenced the former husband to 5 days in jail for each of the 26 separate
acts of contempt that it found the former husband had committed. The
trial court, however, suspended the sentence pending faithful compliance
with the July 12, 2021, final order. The trial court also awarded the
former wife $5,831.32, which consisted of her attorney fee for the
prosecution of the case, funds for May 2021 child support, reimbursement
for her unexpected expenses incurred due to the former husband's
contemptuous conduct, and court costs.
On August 10, 2022, the former husband filed a postjudgment
motion. In his motion, the former husband argued in pertinent part that
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the trial court had acted outside its discretion by finding him in contempt.
The husband maintained that because the divorce judgment did not
include a provision allowing the former wife to reside at the former
marital residence for 60 days from the date of the settlement hearing or
until June 12, 2021, the evidence did not support the trial court's
conclusion finding him in criminal contempt for violating the divorce
judgment. He further argued that the imposed sanctions were excessive.
On November 8, 2022, the trial court conducted a hearing on the
former husband's postjudgment motion. A copy of the transcript of that
hearing is included in the record. That same day, after considering the
parties' arguments, the trial court entered a detailed order. In its order,
the trial court stated:
" '[A]greements between parties to divorce actions are
generally binding, and such agreements will not be set aside,
"except for fraud, collusion, accident, surprise or some other
ground of this nature." ' Grantham v. Grantham, 656 So. 2d
900, 901 (Ala. Civ. App. 1995)(quoting Brocato v. Brocato, 332
So. 2d 722, 724 (Ala. 1976)). '[A]n agreement reached in
settlement of litigation is as binding upon the parties as any
other contract. … Furthermore, there is a strong policy of law
favoring compromises and settlements of litigation, especially
in cases involving families.' Tidwell v. Tidwell, 505 So. 2d
1236, 1237 (Ala. Civ. App. 1987). … Here, the parties reached
an agreement in open court and recited on the record."
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The trial court rejected the former husband's argument that it had acted
outside its discretion by finding the former husband in criminal contempt
for refusing to allow the former wife to reside at the former marital
residence. The trial court, in evaluating the evidence and the contentions
of the parties, specifically noted
"that it was undisputed by [the former husband] that the
pertinent part of the oral agreement was omitted by the
court's [divorce judgment.] He affirmed the oral agreement in
open court and he didn't deny that he knew his obligation
thereunder. … Further, [the former husband] did not contend
that he had any belief that he had a right to exclude [the
former wife] from the [former marital residence.] Rather, he,
in bad faith, rested on the fact that the pertinent part of the
oral agreement had been omitted from the court's written
order and excluded [the former wife] from the [former marital
residence,] despite his agreement and the court's ratification
and acceptance of the same."
Because it concluded that an attorney-fee award and reimbursement of
the former wife's expenses that were incurred due to the former
husband's conduct were not authorized as sanctions for criminal
contempt, the trial court vacated that portion of the July 12, 2021,
judgment. The trial court modified its criminal-contempt sanction by
ordering the former husband to serve two days in jail for each of the 26
separate acts of contempt (for a total of 52 days) and to pay a fine in the
amount of $1,300 ($50 for each of the 26 counts of contempt). The trial
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court suspended the sentence for one year, provided that the former
husband remained compliant with the trial court's orders. On December
9, 2022, the former husband filed a notice of appeal.
The former husband contends on appeal that the trial court acted
outside its discretion by finding him in criminal contempt for violating
the April 22, 2021, divorce judgment because that judgment did not
expressly order him to permit the former wife to reside at the former
marital residence until June 12, 2021.
In Mullins v. Sellers, 80 So. 3d 935, 942-43 (Ala. Civ. App. 2011),
this court set forth the standard of review for a finding of criminal
contempt:
" ' "In order to establish that a party is in criminal
contempt of a court order, a contempt petitioner
must prove beyond a reasonable doubt that the
party against whom they are seeking a finding of
contempt was subject to a ' "lawful order of
reasonable specificity," ' that the party violated
that order, and that the party's violation of the
order was willful. Ex parte Ferguson, 819 So. 2d
626, 629 (Ala. 2001)(quoting United States v.
Turner, 812 F.2d 1552, 1563 (11th Cir. 1987))." '
"Gladden [v. Gladden], 942 So. 2d [362] at 371 [(Ala. Civ. App.
2005)](quoting L.A. v. R.H., 929 So. 2d 1018, 1019 (Ala. Civ.
App. 2005)). 'Furthermore, we have held that, "[a]bsent an
abuse of discretion, or unless the judgment of the trial court
is unsupported by the evidence so as to be plainly or palpably
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wrong, the determination of whether a party is in contempt is
within the sound discretion of the trial court." ' Preston v.
Saab, 43 So. 3d 595, 599 (Ala. Civ. App. 2010)(quoting
Shonkwiler v. Kriska, 780 So. 2d [703] at 706 [(Ala. Civ. App.
2000)])."
Additionally,
" 'whether a contempt in a civil case … is classified
as criminal or civil, the purpose of a contempt
proceeding is to provide a court with a method for
compelling compliance with its orders or the
orders of another judge and to punish those who
willfully disobey or resist any such orders.'
"AltaPointe Health Sys., Inc. v. Davis, 90 So. 3d 139, 155 (Ala.
2012). A person cannot be held in contempt for failure to do
something the court has not ordered. See Price v. McAllister,
537 So. 2d 43, 44 (Ala. Civ. App. 1988)."
Meadwestvaco Corp. v. Mitchell, 195 So. 3d 290, 294 (Ala. Civ. App.
2015).
"Unless the trial court enters a written order setting forth its
approval of the settlement agreement, the settlement agreement is not
part of a judgment rendered by the trial court." Ex parte Williams, [Ms.
CL-2022-1055, Dec. 9, 2022] ___ So. 3d ___ (Ala. Civ. App. 2022). Here,
the record indicates that although the trial court in open court approved
the parties' settlement agreement which included a provision allowing
the former wife to reside at the former marital residence until June 12,
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2021, and the trial court stated in the April 12, 2021, divorce judgment
that it approved the settlement agreement, the trial court did not include
that provision in the divorce judgment. Because that provision was not
expressly included in the divorce judgment, we cannot agree that the
evidence supported the trial court's finding that the former husband
violated a court order by refusing to allow the former wife to reside at the
former marital residence until June 12, 2021. Therefore, the trial court
acted outside its discretion by finding the former husband in criminal
contempt and that portion of the trial court's judgment is reversed. See
Preston v. Saab, 43 So. 3d 595 (Ala. Civ. App. 2010) (holding that mother
could not be found guilty of criminal contempt for failing to allow
telephone visitation between father and child because she had not been
ordered to do so in divorce judgment); Powell v. Powell, 628 So. 2d 832(Ala. Civ. App. 1993) (holding that former husband could not be held in
contempt for failure to make payments set forth in special master's report
because said payments were not ordered by the trial court); Lyman v.
Jackson, 600 So. 2d 334, 336 (Ala. Civ. App. 1992) (recognizing that
findings of contempt are based on refusal to comply with court orders);
and Ex parte Moreland, 465 So. 2d 1163, 1165 (Ala. Civ. App. 1985)
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("[T]he husband could not be held in contempt of court … for his failure
to make pendente lite alimony payments because he was under no order
of the trial court to pay them."). See also Williams v. Williams, 323 So.
3d 675, 680 (Ala. Civ. App. 2020) (Moore, J., concurring specially)
(quoting 17 Am. Jur. 2d Contempt § 140 (2014) (" 'A court's order
sufficient to support the sanction of contempt for a violation should
inform the person in certain, clear, and definite terms as to the duties
thereby imposed or the actions required or forbidden. The mandate
alleged to be violated must be clearly expressed rather than implied.' ").
Accordingly, we reverse the trial court's judgment finding the
former husband in criminal contempt because the April 22, 2021, divorce
judgment did not expressly order him to permit the former wife to reside
at the former marital residence until June 12, 2021. The cause is
remanded for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
Thompson, P.J., and Edwards and Fridy, JJ., concur.
Hanson, J., concurs specially, with opinion.
Moore, J., concurs in the result, without opinion.
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HANSON, Judge, concurring specially.
I concur in the main opinion. I write specially to note that although
this court determined that the Morgan Circuit Court ("the trial court")
acted outside its discretion by finding David Emory Gilbert ("the former
husband") in criminal contempt, I believe that the trial court did not err
by concluding that the former husband breached the parties' settlement
agreement -- an issue that was tried by implied consent. See Rule 15(b),
Ala. R. Civ. P. (providing that "[w]hen issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings").
Section 34-3-21, Ala. Code 1975, states: "An attorney has authority
to bind his or her client, in any action or proceeding, by any agreement
in relation to such case, made in writing, or by an entry to be made on
the minutes of the court." Section 34-3-21 "provide[s] that an oral
settlement agreement is enforceable in Alabama only if it is made in open
court or during a pretrial conference." Contractor Success Grp. v. Service
Thrust Org. Inc., 681 So. 2d 212, 215 (Ala. Civ. App. 1996). A settlement
agreement is a contract. Lem Harris Rainwater Fam. Tr. v. Rainwater,
[Ms. 1210106, Sept. 30, 2022] ___ So. 3d ___ (Ala. 2022).
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"The elements that must be proven in a breach-of-contract
action include the existence of a contract, a material breach of
that contract by one party, and damage to the other party as
a result of the breach. Sokol v. Bruno's, Inc., 527 So. 2d 1245,
1247-48 (Ala. 1988). 'A material breach [of a contract] is one
that touches the fundamental purposes of the contract and
defeats the object of the parties in making the contract.' Id.
at 1248."
Stockton v. CKPD Dev. Co., 936 So. 2d 1065, 1078 (Ala. Civ. App. 2005).
Here, I believe that ample evidence was presented to support the
trial court's conclusion that the former husband breached the parties'
settlement agreement. The parties entered into a settlement agreement
in open court at the settlement hearing that included a provision that
Katherine Yates Gilbert ("the former wife") could reside at the former
marital residence until June 12, 2021. At that point, the agreement
became as enforceable as any written agreement. See Ezell v. Childs,
497 So. 2d 496, 498 (Ala. Civ. App. 1985) ("In Alabama oral agreements
entered in open court are as binding as written ones.). The former
husband admitted that although he had agreed to permit the former wife
to reside at the former marital residence until June 12, 2021, he had
changed the locks on the doors on May 17, 2021, and had denied the
former wife access to the residence from that day forward. The former
wife testified that because she had been denied access to the former
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marital residence, she had incurred unexpected expenses for necessities
and an attorney fee. Therefore, in my opinion, the evidence supports the
trial court's conclusion that the former husband breached the settlement
agreement.
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