DocketNumber: 2170383
Citation Numbers: 267 So. 3d 321
Judges: Thompson
Filed Date: 7/13/2018
Status: Precedential
Modified Date: 7/29/2022
This is the second time these parties have been before this court. The Henry Circuit Court ("the trial court") entered a judgment in which it, in pertinent part, divorced Felicia Wojtala ("the mother") and Thomas Wojtala ("the father"), awarded the mother custody of the parties' two minor children, and ordered the father to pay child support. The mother appealed, raising a number of issues. In Wojtala v. Wojtala,
On July 13, 2017, the mother moved the trial court for a hearing to address this court's holding in Wojtala v. Wojtala,
On October 24, 2017, the trial court entered a judgment redetermining the father's child-support obligation for both children for the period of June 1, 2016, through May 1, 2017, to be $1,527 per month. One of the children reached the age of majority in May 2017, so the trial court determined that the father's child-support obligation for the remaining minor child was $1,074 per month. The trial court then determined that the difference between the amounts it had awarded in the October 24, 2017, judgment and the amount of child support the father had paid under the original judgment that was reversed in Wojtala v. Wojtala,
On appeal, the father argues only that the trial court erred in making the child-support determination in the October 24, 2017, judgment "retroactive" to the date of the original divorce judgment. The father relies on Shirley v. Shirley,
In Shirley v. Shirley,
"The reversal of a judgment, or a part thereof, wholly annuls it, or the part of it, as if it never existed. Birmingham Elec. Co. v. Alabama Pub. Serv. Comm'n,254 Ala. 119 ,47 So.2d 449 (1950). Another judgment rendered by a court with jurisdiction must thereafter replace it. Such was the effect of our reversal and remandment with direction in this case."
Shirley v. Shirley,
"A review of a final judgment on appeal is in effect a new case. Murphy v. Stewart,43 U.S. 263 ,2 How. 263 ,11 L.Ed. 261 (1844). The jurisdiction of the trial court, at least in respect to the matters appealed is ousted and jurisdiction is reposed in the appellate court until it renders judgment with its mandate returning jurisdiction to the trial court. Its judgment becomes the law of the case as of that date. Douglass, Ex'r. v. City Council of Montgomery,124 Ala. 489 ,27 So. 310 (1899). The judgment by its terms may have retroactive application in some instances, particularly where there may have been a stay of the trial court's judgment. In the absence of such direction, as in this case, the increase of support and alimony directed by this court is effective on the date of its judgment. It is our opinion that the rule applies even when the appellate court reverses and renders, entering the judgment the trial court should have entered under the authority of § 12-22-70, Code of Alabama (1975)."
Relying on the holding of Shirley v. Shirley,
However, in Kreitzberg v. Kreitzberg,
In Kreitzberg II, supra, the trial court redetermined the husband's periodic-alimony obligation and ordered that the husband pay an arrearage back to the time of the original divorce judgment based on that newly redetermined amount of periodic alimony. This court acknowledged that in Shirley v. Shirley,
"Similarly, we cannot conclude that the trial court lacked the ability to calculate the husband's arrearage of alimony based on the amount of alimony it awarded in the March 1, 2012, judgment, which it entered in compliance with our remand instructions. The trial court determined that the husband was in contempt for failing to pay alimony pending the appeal. The trial court could not have calculated the husband's arrearage based on the $2,500-per-month alimony obligation that this court had reversed. Instead, the trial court, in compliance with our remand instructions, determined an appropriate amount of monthly alimony--$1,310.50. Based on that reduced amount of alimony, the trial court properly computed the husband's arrearage. Although our instructions on remand in Kreitzberg [I] did not contemplate calculation of an alimony arrearage, we think it implicit in reversals of this nature that the judgment on remand instituting an alimony obligation in compliance with the remand instructions of this court should be applied retroactively to the date of the judgment this court reversed. See Foster v. Foster,733 So.2d 454 , 455 (Ala. Civ. App. 1999) (holding that a child-support order entered in compliance with remand instructions from this court should be retroactive to the date of the divorce judgment reversed by this court); Ex parte McWhorter,716 So.2d 720 , 722 (Ala. Civ. App. 1998) (same); see also Smith v. Smith,928 So.2d 287 , 294 (Ala. Civ. App. 2005) (recognizing that a party who pays alimony pursuant to judgment that is later reversed on that issue may be entitled to reimbursement for the overpayment); Woolwine v. Woolwine,549 So.2d 512 , 514 (Ala. Civ. App. 1989) (same). We find no error on the part of the trial court in holding the husband in contempt for failing to pay alimony pending the appeal or in calculating the husband's arrearage based on the reduced amount of alimony the trial court awarded in its March 1, 2012, judgment on remand."
Kreitzberg II,
In a case involving child support, Foster v. Foster,
"In its original divorce judgment, dated March 17, 1997, the trial court divorced the parties and awarded custody of the four children to the wife. It was *325the intent of this court, in remanding this case, to have the trial court adjudicate those issues that it should have adjudicated when it entered its original order.
" 'Parental support is a fundamental right of all minor children. [State ex rel. Shellhouse v.] Bentley, [666 So.2d 517 (Ala. Civ. App. 1995) ]. "Although child support is paid to the custodial parent, it is for the sole benefit of the minor children."Id. , 666 So.2d at 518 . This court will not allow an erroneous ruling of the trial court [to] deprive the minor children of their fundamental right of support.'
" Ex parte McWhorter,716 So.2d 720 at 722 (Ala. Civ. App. 1998). The trial court erred in failing to order that the father's child support be retroactive to the date of the original divorce judgment; on remand, the trial court is directed to make its child-support order effective as of the date of the original divorce judgment."
Foster v. Foster,
In Ex parte McWhorter,
We acknowledge that Shirley v. Shirley,
This court held in its decision in Wojtala v. Wojtala,
The father has raised no other issues on appeal, and, therefore, any other issues have been waived. See Boshell v. Keith,
AFFIRMED.
Pittman, Thomas, Moore, and Donaldson, JJ., concur.