Construction of Divorce Settlement Agreement - Alimony in Gross - Servicemembers' Civil Relief Act


Wikle v. Boyd, [Ms. 2180283, Dec. 20, 2019] __ So. 3d __ (Ala. Civ. App. 2019). The court (Edwards, J.; Moore, Donaldson, and Hanson, JJ., concur; Thompson, P.J., dissents) reverses a judgment of the Dale Circuit Court holding that the wife’s remarriage did not terminate the husband’s obligation to pay alimony.

The court held that although the duration of the payment to the wife (seven years) was certain, the amount would fluctuate with the wife’s monthly expenses. Ms. *19. Consequently, “[t]he trial court erred in determining the monetary obligations imposed by paragraph (2)(B) are alimony in gross and that the monetary obligations are not modifiable or terminable.” Ms. *20-21.

The court also reversed the circuit court’s judgment that the former husband’s effort to set aside the 2011 divorce settlement agreement on the ground of fraud was time-barred. The court held that 50 U.S.C. § 3936(a) (the Servicemembers’ Civil Relief Act) tolled the limitations period for the husband to challenge the settlement agreement on the ground of fraud. The court declined to follow Crouch v. United Technologies Corp., 533 So. 2d 220 (Ala. 1988), which had held that tolling under the predecessor statute (the Soldiers’ and Sailors’ Civil Relief Act) was discretionary based on whether defense or maintenance “of the suit is materially affected by his military service, whether he be career or not.” Ms. *27. The court noted that subsequent to Crouch, the United States Supreme Court had held in Conroy v. Aniskoff, 507 U.S. 511 (1993) that the statute of limitations is tolled until the conclusion of military service “without the need for proof that the servicemember’s military service impaired his or her ability to bring suit.” Ms. *27. The court noted that where a holding of the Alabama Supreme Court conflicts with a holding on the same issue by the United States Supreme Court, the Court of Civil Appeals is bound to follow the opinion of the United States Supreme Court. Ms. *28.

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