Jonathan David Jones v. Tameka Lashea Jones (Appeal from Shelby Circuit Court: DR-18-900268).

Rel: January 31, 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, 2023-2024
________________________

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________________________

Jonathan David Jones

v.

Tameka Lashea Jones

Appeal from Shelby Circuit Court
(DR-18-900268)

MOORE, Judge.

This appeal arises from an order entered by the Shelby Circuit

Court ("the trial court") on August 21, 2022, amending a judgment of

divorce. We dismiss the appeal in part, reverse the judgment, and

remand the case.
CL-2023-0020

On May 24, 2021, the Honorable Julie A. Palmer, a private judge

who was appointed by the presiding judge of the trial court, see Ala. Code

1975, § 12-11A-3, entered a judgment of divorce that, among other things,

dissolved the marriage of Jonathan David Jones ("the husband") and

Tameka Lashea Jones ("the wife"), awarded the wife alimony in gross of

$140,000 to compensate her for her equitable share of the parties' marital

residence, and awarded the wife 36 months of rehabilitative alimony in

the amount of $500 per month. The husband appealed the divorce

judgment, and this court reversed the judgment because we determined

that the trial court had improperly valued the equity in the marital

residence, which was partially owned by a third party, the husband's

father. We remanded the case for the trial court to reconsider its property

division and alimony awards in light of our opinion. See Jones v. Jones,

369 So. 3d 169 (Ala. Civ. App. 2022).

On August 21, 2022, in compliance with our remand order, Judge

Palmer amended the judgment of divorce, reducing the amount of

alimony in gross awarded to the wife to $70,000 and increasing the

amount of rehabilitative alimony awarded to the wife to $850 per month.

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On August 30, 2022, the husband filed a postjudgment motion arguing

that the trial court had erred in ordering him to pay the alimony-in-gross

award by July 15, 2021, a date that had passed a year earlier, and in

awarding the wife $850 per month in rehabilitative alimony because that

award violated this court's remand instructions, because he did not have

the ability to pay that amount, and because the trial court did not make

the express findings required by Ala. Code 1975, § 30-2-57, when making

the award. On October 6, 2022, while the husband's postjudgment

motion was pending, the wife filed a motion for relief from the judgment

in which she asserted that the marital residence had significantly

increased in value since the original judgment of divorce had been

entered such that her equitable share should be recalculated and that the

husband's father had transferred his interest in the marital residence to

the husband. On October 12, 2022, the trial court conducted a hearing

on both motions.

On October 13, 2022, the husband filed a suggestion of bankruptcy,

indicating that he had filed for bankruptcy protection on October 11,

2022; the husband also moved Judge Palmer to stay the divorce

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proceedings. Judge Palmer did not take any further action in the case.

On January 9, 2023, the husband filed a notice of appeal. In the notice,

the husband indicated that he was appealing from a "postjudgment

order" dated November 28, 2022, which was the 90th day from the date

he filed his postjudgment motion. The husband evidently determined

that his postjudgment motion had been denied by operation of law

pursuant to Rule 59.1, Ala. R. Civ. P., which generally provides that a

postjudgment motion is automatically denied if it is not ruled upon

within 90 days of its filing.

In his brief on appeal, the husband argues that the awards of

alimony in gross and rehabilitative alimony are inequitable. Upon

initially reviewing his brief, this court noticed that the husband had filed

for bankruptcy protection and requested that the parties submit letter

briefs on the effect of the automatic-stay provision in 11 U.S.C. § 362 ("the

automatic-stay provision") on the appellate jurisdiction of this court. The

parties submitted letter briefs, agreeing that the automatic-stay

provision does not deprive this court of appellate jurisdiction.

The automatic-stay provision provides, in pertinent part:

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"(a) Except as provided in subsection (b) of this section,
a petition filed under section 301, 302, or 303 of [Title 11] ...
operates as a stay, applicable to all entities, of--

"(1) the commencement or continuation ... of
a judicial ... proceeding against the debtor that was
or could have been commenced before the
commencement of the case under this title, or to
recover a claim against the debtor that arose
before the commencement of the case under this
title;

"....

"(b) The filing of a petition under section 301, 302, or 303
of [Title 11] ... does not operate as a stay--

"....

"(2) under subsection (a)--

"(A) of the commencement or
continuation of a civil action or
proceeding--

"....

"(iv) for the
dissolution of a marriage,
except to the extent that
such proceeding seeks to
determine the division of
property that is property of
the estate."

(Emphasis added.)
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Pursuant to 11 U.S.C. § 362(b)(2)(A)(iv), the automatic-stay

provision generally does not apply to state-court divorce proceedings. A

spouse may pursue a claim for rehabilitative alimony, and a state court

may adjudicate that claim despite the imposition of the automatic-stay

provision. See In re Greenhouse, 641 B.R. 711, 715 (Bankr. S.D. Fla.

2022). Thus, the award of rehabilitative alimony and the appeal of that

award are not subject to the automatic-stay provision. The automatic-

stay provision also did not toll the 90-day period for the trial court to rule

on the husband's postjudgment motion under Rule 59.1, Ala. R. Civ. P.

See Linowiecki v. Nichols, 120 So. 3d 1082 (Ala. Civ. App. 2013). As the

husband correctly determined, his postjudgment motion was denied by

operation of law on November 28, 2022, and he timely filed his notice of

appeal within 42 days of that date. See Rule 4, Ala. R. App. P. This court

has jurisdiction over the appeal to the extent that it involves a review of

the award of rehabilitative alimony.

On the other hand, § 362(b)(2)(A)(iv) does "prevent a state court

from dividing divorcing parties' property" in a divorce proceeding, In re

Herter, 456 B.R. 455, 467 (Bankr. D. Idaho 2011), when the parties'

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property has become property of the bankruptcy estate, In re Rose, 563

B.R. 606 (Bankr. E.D.N.C. 2016). We conclude that the automatic-stay

provision applies to divorce proceedings to the extent that they involve a

determination of alimony in gross.

Under federal bankruptcy law, property of the bankruptcy estate

includes "all legal or equitable interests of the debtor in property as of

the commencement of the case." 11 U.S.C. § 541(a)(1). "Although federal

law determines when a debtor's interest in property is property of the

bankruptcy estate, property interests are created and defined by state

law." In re Ross, 548 B.R. 632, 637 (Bankr. E.D.N.Y. 2016), aff'd sub nom.

Mendelsohn v. Ross, 251 F. Supp. 3d 518 (E.D.N.Y. 2017) (citing Butner

v. United States, 440 U.S. 48, 55 (1979)). Under Alabama law, an award

of alimony in gross is a monetary award to one spouse to compensate that

spouse for his or her equitable interest in marital property awarded to

the other spouse. See Ex parte Hager, 293 Ala. 47, 299 So. 2d 743 (1974).

The monetary award is payable out of the present estate of the paying

spouse. Id. In this case, Judge Palmer awarded the wife $70,000 to

compensate her for her equitable interest in the marital residence, and

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that award is payable out of the property owned by the husband that,

upon the filing of the bankruptcy petition, became property of the

bankruptcy estate. See In re Yonikus, 996 F.2d 866, 869 (7th Cir. 1993)

(holding that, when a bankruptcy petition is filed, "virtually all property

of the debtor" becomes property of the bankruptcy estate pursuant to 11

U.S.C. § 541(a)). Accordingly, the automatic-stay provision applies to the

continuation of the divorce proceedings against the husband seeking to

determine his liability for alimony in gross.

The husband argues that his appeal of the award of alimony in

gross is not a "continuation of ... a judicial ... proceeding against the

debtor" within the meaning of § 362(a); he characterizes his appeal as a

new action commenced by a bankruptcy debtor. However, in Alt v. Alt,

257 So. 3d 873 (Ala. Civ. App. 2017), this court held that an appeal

operates as a continuation of the underlying judicial proceeding.

Pursuant to Alt, the husband's appeal in this case is a continuation of the

underlying divorce proceedings in which the wife pursued her claim for

rehabilitative alimony against the husband. In Alt, this court further

held that a notice of appeal filed in violation of the automatic-stay

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provision is a nullity and that "a notice of appeal, filed after a petition is

filed in the bankruptcy court, is considered 'void and of null effect.' " 257

So. 3d at 875 (quoting In re Capgro Leasing Assocs., 169 B.R. 305, 313

(Bankr. E.D.N.Y. 1994)). In this case, the husband's appeal of the

alimony-in-gross award is a nullity because it is a continuation of the

divorce proceeding against the husband in which the wife is seeking a

division of his property, which is now within the bankruptcy estate.

Consequently, this court has no jurisdiction over the appeal of the

judgment insofar as it seeks review of the alimony-in-gross award.

Our holding is not intended to be interpreted to mean that the

husband has lost his right to appeal the award of alimony in gross. Under

federal bankruptcy law, the husband may file another notice of appeal

within 30 days from the date he receives notice of the termination or

lifting of the automatic stay. See 11 U.S.C. § 108(c); see also Alt, supra

(discussing the effect of § 108(c)). This court has not been apprised

whether the automatic stay has been terminated or lifted or whether the

time for appeal under § 108(c) has expired, so we do not express any

opinion whether the father may validly appeal the judgment awarding

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the wife alimony in gross in the future. We hold only that the notice of

appeal filed on January 9, 2023, is void to the extent that it seeks relief

from the alimony-in-gross award.

Although we recognize that the appeal of the judgment awarding

the wife rehabilitative alimony is properly before this court, we cannot

review that award in the present context. As this court recognized in the

original appeal of this case, this court ordinarily must consider awards of

alimony in gross and rehabilitative alimony together to ascertain

whether the awards are inequitable. See Jones, 369 So. 3d at 174. In

this case, the automatic-stay provision precludes this court from

considering the propriety of the award of alimony in gross. However, at

this point, we need not consider whether this court may nevertheless

independently review the propriety of the award of rehabilitative

alimony despite our inability to also consider the interrelated property-

division aspects of the divorce judgment. Instead, we note that § 30-2-

57(a), Ala. Code 1975, requires a trial court awarding rehabilitative

alimony to make express findings of fact supporting the award, and the

judgment awarding the wife rehabilitative alimony fails to comply with

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this requirement. "We cannot properly review the award in this case

without having before us the express findings required by [Ala. Code

1975,] § 30-2-57." Merrick v. Merrick, 352 So. 3d 770, 775 (Ala. Civ. App.

2021). Therefore, we reverse the judgment and remand the case with

instructions for Judge Palmer to enter the appropriate findings of fact to

support the award of rehabilitative alimony.

APPEAL DISMISSED IN PART; REVERSED AND REMANDED

WITH INSTRUCTIONS.

Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.

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