Collateral Bar Rule – Civil Contempt – Alimony

Reeves v. Reeves, [Ms. 2200216, 2200217, Oct. 1, 2021] __ So. 3d __ (Ala. Civ. App. 2021). The court (Moore, Edwards, and Fridy, JJ., concur; Thompson, P.J., and Hanson, J., concur in the result) reverses the Etowah Circuit Court’s order holding the former husband in contempt for failure to pay the former wife alimony after she allegedly began to cohabitate with a member of the opposite sex.

The court first holds that “[t]o the extent that the trial court imposed sanctions on the former husband in order to compel or coerce compliance with the November 6, 2018, order, and established that the contempt could be purged through the payment of the alimony awarded in the divorce judgment, the contempt adjudication would be considered civil in nature.” See State v. Thomas, 550 So. 2d 1067, 1072 (Ala. 1989). “The collateral-bar rule does not foreclose the former husband from challenging the correctness of the November 6, 2018, order as a defense to the civil-contempt purge condition requiring payment of the alimony.” Ms. **15-16.

The court rejects the former wife’s argument that her alleged cohabitation would not terminate the alimony payments because those payments were in the nature of non-modifiable alimony in gross. After noting that the parties voluntarily entered into a settlement agreement that provided for termination of the alimony payments, Ms.*16, the court holds “neither this court nor our supreme court has ever held that the parties cannot freely contract for the modification or termination of alimony in gross that is payable in installments upon the cohabitation of the recipient spouse with an unrelated member of the opposite sex.” Ms. *20. Even though alimony in gross is generally nonmodifiable, the court explains “a provision in a divorce settlement agreement is enforceable even if it is inconsistent with statutory law or caselaw.” Ms. *21.

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