DICKERSON v. DICKERSON (2020)

In this appeal, Melanie L. Dickerson (“the wife”), who is a published author, appeals from a judgment of the Madison Circuit Court divorcing her from Joe D. Dickerson (“the husband”) that, as finally amended, awarded the husband “thirty percent (30%) of her net income on her published books, books currently under contract, the Magnolia Summer book series, and all other books that have been written or conceived during ․ the marriage” of the parties (emphasis removed from the term “net income”). We affirm.

The record reflects that the parties married in 1996 and that, approximately 21 years later in November 2017, the wife filed a complaint seeking a divorce from the husband on the ground of incompatibility of temperament and an equitable property division. The husband answered the complaint, denying all material allegations in the complaint apart from the parties' marital status, date of marriage, ages, and accrual of properties; asserting a counterclaim seeking a divorce on the bases of incompatibility of temperament and an irretrievable breakdown of the marriage; and seeking “an equitable division of real and personal property acquired during the marriage.”

After mediation between the parties proved unsuccessful, the trial court held an ore tenus proceeding in October 2018. That court subsequently entered a judgment that, among other things, dissolved the parties' marriage and, in a property-division section bearing the header “Intellectual Property,” directed the wife to pay to the husband “thirty percent (30%) of all her income on her published books, books currently under contract, the Magnolia Summer book series, and all other books that have been written or conceived during the time of the marriage.” Notably, the judgment specifically identified the following book titles that were revealed in testimony as having been “published and/or under contract” as of October 2018: The Healer's Apprentice, The Merchant's Daughter, The Fairest Beauty, The Captive Maiden, The Princess Spy, The Huntress of Thornbeck Forest, The Golden Braid, The Beautiful Pretender,¹ The Silent Songbird, The Noble Servant, The Spy's Devotion, A Viscount's Proposal, A Dangerous Engagement, The Orphan's Wish, Magnolia Summer, The Warrior Maiden, and The Piper's Pursuit (the latter two works having yet to be published as of the time of trial but set to be released in 2019 as parts of the “Hagenheim” fairy-tale romance series).

The wife, after having retained new counsel, timely filed a motion to alter, amend, or vacate the judgment, challenging, among other things, the award of publishing royalties to the husband and arguing, in pertinent part, that the award failed to consider taxation and agency considerations, that the award was speculative and of uncertain value, that the award improperly divided property not yet in existence, and that the award was otherwise inequitable. The trial court, in response, amended its judgment in November 2018 so as to clearly base the award to the husband on the wife's net royalty income received and not the gross royalties paid. The wife then timely appealed from the judgment as amended.

The wife asserts in her appellate brief that the question of divisibility of royalty payments stemming from intellectual property created by a divorcing spouse is wholly one of first impression. We disagree, having located through research this court's opinion in Rose v. Rose, 395 So. 2d 1038 (Ala. Civ. App. 1981). In Rose, a divorcing husband had founded a corporation, the Stanley-Rose Company, that had employed the divorcing wife and had been “involved in selling advertising specialties, political campaign material, imprinted pens, calendars, and the like”; further, the husband had apparently received, and/or had the expectation of receiving, “royalties or commissions” from another company, the “Zippo Manufacturing Company,” as to which “royalties or commissions” the wife was awarded a 25% share as a component of the trial court's divorce judgment. Rose, 395 So. 2d at 1039-40. After concluding that the intent of the royalty-and-commissions award had been “to make sure that [the divorcing husband] would share his earnings with his former wife should he again become gainfully employed,” this court rejected the wife's challenge to that award as being too “uncertain and indefinite” as to permit postjudgment enforcement thereof. Id. at 1040. Rose thus supports the proposition that a trial court, as a component of a property division, can indeed award to one divorcing spouse a portion of an income stream, such as royalties, expected to be paid in the future to the other divorcing spouse. Accord Hackney v. Hackney, 794 So. 2d 1159, 1165 (Ala. Civ. App. 2001) (trial court acted within its discretion in awarding to divorcing wife 50% of net lease payments expected to be made in the future to the divorcing husband's closely held corporation), and Golson v. Golson, 471 So. 2d 426, 428 (Ala. Civ. App. 1985) (trial court acted within its discretion in awarding to divorcing wife one-third of income derived from private loans owned by or managed by divorcing husband).

In this case, the trial court identified 17 specific works authored by the wife that either had been published or were “under contract” at the time of trial and as to which the husband would be entitled to 30% of future net royalties. Under Rose, Hackney, and Golson, supra, a trial court may properly award income derived from those extant works to either party to the marriage, regardless of to whom that income is initially payable, and the record contains ample evidence of the husband's having supported the wife's writing efforts.

To the extent that the wife asserts that the judgment's award of royalties as to “other books that have been ․ conceived during the time of the marriage” (emphasis added) is an abuse of discretion as awarding property not in existence, we note that the judgment, which is to “ ‘be interpreted or construed like other written instruments,’ ” Cockrell v. Cockrell, 40 So. 3d 712, 715 (Ala. Civ. App. 2009) (quoting Sartin v. Sartin, 678 So. 2d 1181, 1183 (Ala. Civ. App. 1996)), is subject to the doctrine of noscitur a sociis, under which general words (such as “other books ․ written or conceived during the time of the marriage”) are to be interpreted restrictively to a sense analogous to that of the less general, i.e., the 17 books that were specified as either published books or under-contract books. See Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1122 n.7 (Ala. 2003). Further, unlike the circumstances in Malone v. Malone, 563 So. 2d 1061 (Ala. Civ. App. 1990), or Golden v. Golden, 681 So. 2d 605 (Ala. Civ. App. 1996), the wife's income stream is not a mere expectancy, such as a potential broadcasting license, or an asset wholly attributable to a premarital occurrence, but is instead a tangible product of the wife's writing labor that existed for the eight years of the parties' marriage preceding trial. We thus agree with the husband that the judgment does not impermissibly award a “prospective” intellectual-property asset, and we are not called upon in this case to establish a rule governing such assets in the manner apparently sought by the wife.

In this case, the trial court elected to award an interest in an existing asset –– the wife's right to receive royalties from her existing publishing catalog –– to the husband. Although this court might have affirmed a judgment denying such an award to the noncreating spouse, the wife has failed to demonstrate that the trial court abused its discretion in making such an award to the husband in this case. Contrary to the argument of the wife's appellate counsel, the wife, who was 48 years old at the time of trial, was not awarded “virtually no other assets or income” –– she was awarded two banking accounts and her Roth individual-retirement account (which accounts were worth approximately $4,000 in the aggregate), half of the net equity obtained via the sale of the property on which the marital residence was located (which parcel had a net mortgaged value of approximately $118,000), three motor vehicles used by the wife and the parties' children (which had an aggregate net equity of approximately $3,000), and 70 percent of the net royalties from her books. The husband, who is over 10 years older than the wife, was awarded the remaining half of the net equity obtained from the sale of the marital residence, the motor vehicle he primarily used (which had no net equity), and his retirement accounts, the principal balances of which were largely accrued by him before the parties' marriage and which had been depleted by over 50% by the parties in the early stages of the wife's writing career. The husband also adduced evidence tending to show that he had been unable to obtain work at a greater wage than $10 per hour in the years preceding trial, while the wife's royalty income had increased to over $100,000 per year as of 2017. Given the trial court's discretion, in making a division of property, to take into consideration “the age and health of the parties; the future employment prospects of the parties; [and] the source, type, and value of the property,” Morrison v. Morrison, 540 So. 2d 80, 81 (Ala. Civ. App. 1989), we cannot properly reverse the trial court's property division in the manner sought by the wife.

Based upon the foregoing facts and authorities, the judgment of the Madison Circuit Court is due to be affirmed.

AFFIRMED.

Melanie L. Dickerson (“the wife”) appeals from a divorce judgment entered by the Madison Circuit Court (“the trial court”) to the extent that it orders her to pay to Joe D. Dickerson (“the husband”) a portion of the proceeds of royalties earned by her in the future. The wife specifically attacks one provision of the judgment that, as amended, provides:

“Intellectual Property

“Beginning November 1, 2018, the Wife shall pay to the Husband thirty percent (30%) of her net income on her published books, books currently under contract, the Magnolia Summer book series, and all other books that have been written or conceived during the time of the marriage.

“At the time of trial, the books published and/or under contract were: The Healer's Apprentice, The Merchant's Daughter, The Fairest Beauty, The Captive Maiden, The Princess Spy, The Huntress of Thornbeck Forest, The Golden Braid, The Beautify Pretender, The Silent Songbird, The Noble Servant, The Spy's Devotion, The Viscount's Proposal, A Dangerous Engagement, The Orphan's Wish, Magnolia Summer, Warrior Maiden, Hagenheim Series, [and] Piper's Pursuit. Income includes all domestic and foreign sales of hardcover, paperback, eBook, audio, video, all other digital versions, and film and television rights.”

The wife argues that “the trial court's order is overly broad and the wife should not be required to pay [to the husband] royalties on works that she has not written.” (The wife's brief at p. 19.) She also argues that the trial court erred in requiring her to pay to the husband a portion of her royalties “from books that were authored by the wife during the marriage.” (The wife's brief at p. 19.) To the extent that the main opinion affirms the trial court's judgment with respect to the award to the husband of royalties “from books that were authored by the wife during the marriage,” I concur with that part of the opinion. However, I dissent from the affirmance of the trial court's award to the husband of a portion of the royalties from books that had not been written by the wife but had merely been “conceived during the time of the marriage.”

Initially, I note that the main opinion concludes that the list of specific books referred to in the judgment are the only books for which the wife must pay the husband a portion of the royalties. However, the judgment provides that the wife must pay the husband a portion of the royalties from the sale of “her published books, books currently under contract, the Magnolia Summer book series, and all other books that have been written or conceived during the time of the marriage.” The judgment defines the specific list of books as “the books published and/or under contract”; however, it does not state that that list includes the books “conceived during the time of the marriage.” Therefore, I disagree with the main opinion that the list of specific books are the only books for which the wife must pay a portion of the royalties.

As the wife points out, this court has held that “marital property generally includes property purchased or otherwise accumulated by the parties during the marriage.” Nichols v. Nichols, 824 So. 2d 797, 802 (Ala. Civ. App. 2001) (emphasis added). Accordingly, I conclude that the award of royalties from the sale of intellectual property that was not in existence during the marriage was error by the trial court. Because I would reverse the trial court's judgment to the extent that it awards the husband a percentage of the royalties for books “conceived” during the marriage but not yet written, I respectfully dissent from the affirmance of that part of the judgment.

FOOTNOTES

1.   The judgment contains a typographical error in referring to this work, identifying it as being titled “The Beautify Pretender.”

HANSON, Judge.

Donaldson and Edwards, JJ., concur. Moore, J., concurs in part and dissents in part, with writing, which Thompson, P.J., joins.