Ex Parte Montgomery, 2100670 (ala.civ.app. 8-26-2011), 79 So. 3d 660

Husband and wife divorced in 1999; divorce judgment incorporated a property settlement that awarded the wife 35% of the husband’s retirement benefits (paragraph 9) and $15,000 of the husband’s 401(k) (paragraph 10, deemed a QDRO).
A QDRO pertaining to paragraph 10 was entered in 1999; no QDRO for paragraph 9 existed in the judgment.
Wife filed, in 2005, a request for a QDRO (QDRO #2) implementing paragraph 9; the order referred to benefits accruing between July 17, 1975 and January 1, 1999.
In 2005 the trial court entered May 11, 2005, purportedly creating QDRO #2; husband did not object to entry but later challenged jurisdiction and validity.
In 2008 the wife sought to amend QDRO #2; the trial court entered QDRO #3 on February 8, 2008; husband moved to set aside.
On remand, starting October 2010, wife sought a QDRO to implement paragraph 9; husband challenged jurisdiction and due process; a March 16, 2011 order entered a QDRO rendered by Judge Greene, which the court later vacated on mandamus review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the circuit court had jurisdiction to issue QDROs #2 and #3	Husband contends orders were void for lack of jurisdiction.	Wife maintains trial court had inherent power to enforce/implement the judgment via QDRO.	Trial court had subject-matter jurisdiction to implement via QDRO as enforcing the divorce judgment.
Whether the March 16, 2011 QDRO was void for due process	Husband argues no hearing on his challenge and due process was violated.	The court denied dismissal without oral hearing only if no hearing was requested; wife’s contempt action invited QDRO entry.	Husband’s due-process rights were violated; March 16, 2011 QDRO vacated.
Whether the March 16, 2011 QDRO improperly modified paragraph 9	Entry of QDRO expanded wife’s award beyond paragraph 9.	Entrypoint of QDRO implements existing judgment and does not modify it.	QDRO cannot modify property provisions; but due-process violation compelled vacatur independent of modification issue.
Whether the court should vacate prior May 2005 and February 2008 QDROs on remand	Remand instructions require vacating void orders.	Not necessary to reach if March 16, 2011 QDRO is vacated.	Mandamus requires vacating March 16, 2011 QDRO; remand instructions to vacate earlier QDROs remain.

Jardine v. Jardine, 918 So. 2d 127 (Ala. Civ. App. 2005) (court may issue a QDRO to implement or enforce judgment; not a modification of property division, except clerical errors)
Rom er v. Romer, 44 So. 3d 514 (Ala. Civ. App. 2009) (QDROs can be final judgments; circumstances to treat subsequent QDROs as final depend on scope of issues)
Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala. 2003) (mandamus to compel vacating void judgments or orders)
Ex parte Chamblee, 899 So. 2d 244 (Ala. 2004) (mandamus; voidness when court lacks jurisdiction or acts beyond authority)
Ex parte Sealy, L.L.C., 904 So. 2d 1230 (Ala. 2004) (mandamus standards and voidness principles)
Ex parte State Farm Fire & Cas. Co., 794 So. 2d 368 (Ala. 2001) (waiver and review principles for mandamus petitions)
Gilliam v. Gilliam, 43 So. 2d 615 (Ala. Civ. App. 2010) (Rule 58; entry vs. rendering of judgments; timing considerations)
Blanton v. Blanton, 463 So. 2d 158 (Ala. Civ. App. 1984) (due process considerations; hearing not always required for denial of motion to dismiss)
Ex parte Jim Walter Homes, Inc., 776 So. 2d 76 (Ala. 2000) (mitigating circumstances and waiver concepts in mandamus)
Neal v. Neal, 856 So. 2d 766 (Ala. 2002) (due process: notice and hearing required)