Adams v. Adams

• Decision Date: 20 December 1934
• Docket Number: 1 Div. 815.
• Citation: 159 So. 80,229 Ala. 588
• Parties: ADAMS v. ADAMS.
• Court: Alabama Supreme Court

159 So. 80

229 Ala. 588

ADAMS v. ADAMS.

1 Div. 815.

Supreme Court of Alabama

December 20, 1934

Rehearing Denied Jan. 24, 1935.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Petition of Nannie Glenn Goodbrad Adams for modification of a decree awarding alimony against Benjamin Franklin Adams, Jr. From a decree for complainant, respondent appeals.

Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellant.

Inge Stallworth & Inge, of Mobile, for appellee.

GARDNER Justice.

In December, 1930, appellee (the wife) obtained a decree of absolute divorce from her husband, this appellant. The parties had been married about fourteen years, and moved in good social circles in Mobile. There were no children. The divorce was on the ground of voluntary abandonment. The husband went to the home of his father to reside. The wife is now under the same roof with her parents, but maintains a separate apartment, though taking meals with them. Upon first separation defendant gave complainant $200 per month. This continued for some months, and when final decree was entered she was awarded permanent alimony in the sum of $150 per month, together with certain policies of insurance on the life of the husband, the premiums to be paid by him amounting to a monthly average of about $35. The alimony decree was in exact accord with the agreement of the parties on file in the cause.

Under our more recent decisions, this character of decree as to alimony was subject to future modification as the equities of the parties may demand, though it contained no express reservation of control for that purpose. Worthington v Worthington, 224 Ala. 237, 139 So. 334, 335; Epps v. Epps, 218 Ala. 667, 120 So. 150; Littleton v. Littleton, 224 Ala. 103, 139 So. 335. But that question is here of no practical importance for the reason that in each decree rendered in this cause jurisdiction for this purpose was expressly reserved. Nor is the power of modification and control affected by the fact that the amount of alimony fixed in the decree was pursuant to an agreement of the parties.

We have here followed the lead of those authorities which adopt the theory that such an agreement "becomes merged into the decree and thereby loses its contractual nature at least to the extent that the court has the power to modify the decree when changed circumstances so justify." Worthington v. Worthington, supra.

The defendant continued to meet the requirements of this decree until in April, 1932, he filed a petition seeking a reduction in the amount of alimony to be paid, alleging changed financial conditions justifying a modification. A reference was held resulting in a report by the register making an allowance to the complainant of $108.33 per month for the term of one year, at the expiration of which time defendant was to have an audit made of the books of the firm of B. F. Adams & Co., a partnership, composed of defendant and his father, engaged in the business of insurance; the defendant owning one-half interest. The report contemplated that if the audit disclosed a profit for that year, the wife should receive one-third of his share of the profits, less whatever amounts may have been paid to her during the year over and above her monthly allowance of $108.33. This report was duly confirmed in July, 1932, the court retaining jurisdiction for such other orders as to the allowance as the court may deem proper.

Thereafter (October 4, 1933) the parties entered into another written agreement to modify and extend the terms of the decree of July, 1932, and agree upon a basis for the payment of alimony, in which it was stipulated the complainant should be paid one-third of defendant's monthly salary, but in no event less than $100 per month, so long as he receives a monthly salary of $250; and, also, he is to continue the premium payments on designated life insurance policies.

In paragraph C of the agreement is the stipulation for an audit of the books for the year 1932, and during January of each year thereafter for the preceding year, with the view that should an actual profit be disclosed by the audit complainant should receive one-third of his share, less any amount paid her over and above her monthly allowance of one-third of his salary and less the cost of the insurance premiums. Further details are considered unnecessary.

The audit for 1932 did not show a profit. As appears from correspondence between these parties, complainant objected to some few expense items (three in number), as shown in the audit. Defendant replied that he considered complainant's objection as a repudiation of the agreement for an audit, and justified a rescission thereof on his part. While, as argued by counsel for defendant, the meaning of the word "audit" in a broad sense may embrace not only an examination of accounts and a comparison of charges with vouchers, but also an allowance or rejection of charges and a statement of balance (Fuller, etc., Co. v. Shannon & Willfong, 205 Iowa, 104, 215 N.W. 611; Western N.Y. Inst. v. Broome County, 82 Misc. 63, 143 N.Y.S. 241; Conover v. West Jersey Mortgage Co., 96 N. J. Eq. 441, 126 A. 855), yet it is sometimes restricted in its meaning to a mere mathematical process, a comparison of charges with vouchers. Travelers' Ins. Co. v. Pierce Engine Co., 141 Wis. 103, 123 N.W. 643; Ford v. Springer Land Ass'n, 8 N. M. 37, 41 P. 541. Its true meaning is to be ascertained from the context, all surrounding facts, and the purpose to be accomplished-all to determine the intention of the parties.

Here, so viewed, we think the word should be given its more restricted meaning. The agreement was for practical purposes, to ascertain if in fact there was an actual profit of the business, and an audit of the books was desired. In Shriner v. Craft, 166 Ala. 146, 51 So. 884, 28 L. R. A. (N. S.) 450, 139 Am. St. Rep. 19 (cited by defendant), there was a valid and binding agreement that the architect's certificate should be conclusive on the parties. But there is here no such agreement-merely for an audit of the books of the partnership.

We therefore conclude that complainant's objection to certain items as shown on the books constituted no breach of the agreement on her part for an audit, and gave no justification to defendant for a repudiation thereof.

Further audit was refused and complainant receiving no alimony petitioned the court for relief. The court in March, 1934, had an oral hearing, at which the parties to this cause testified. Upon this hearing, the chancellor, pretermitting any other questions presented, rendered a decree in complainant's favor for $433.32, representing monthly alimony payments for December, 1933, and January, February, and March, 1934, which were in arrears, and further decreed that defendant pay complainant $108.33 on April 1, 1934, and on the first day of each month thereafter, until otherwise ordered by the court. The decree also provided that defendant continue in force the life insurance policies payable to complainant, named in the first decree rendered. It is from this decree that defendant has prosecuted the appeal.

Defendant insists the court could render no decree for monthly...