Adams v. Adams

• Citation: 231 Ala. 298,164 So. 749
• Decision Date: 19 December 1935
• Docket Number: 1 Div. 861
• Parties: ADAMS v. ADAMS.
• Court: Alabama Supreme Court

164 So. 749

231 Ala. 298

ADAMS v. ADAMS.

1 Div. 861

Supreme Court of Alabama

December 19, 1935

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

Suit of Nannie Glenn Goodbrad Adams against Benjamin Franklin Adams Jr., wherein complainant moved for an order requiring production of books of account on reference before register. From a decree denying the motion, complainant appeals.

Reversed and remanded.

Inge &amp Stallworth, of Mobile, for appellant.

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

THOMAS Justice.

This is a second appeal. Adams v. Adams, 229 Ala. 588, 159 So. 80.

The present appeal is by Mrs. Adams from a decree denying her motion for an order that the books of B.F. Adams & Co., of which respondent-appellee was a member, be delivered to the register of the court at a reference to be ordered by the court; that an examination and report thereon be made to the register as the basis for further decree. This action of the court in denying her motion is assigned as error.

Appellant rests her right on the ground that the decree of July 16 1932, fixed her alimony and the right to ascertain the amount by a yearly audit. This action of the court has not been modified. That decree fixed and vested in her the alimony indicated, and declared the right (1) to ascertain the interest in the firm's profits by a proper audit, and (2) to determine her interest therein by virtue of the decree; and rendered the means of ascertaining the profits of the firm and appellee a material and necessary part of the alimony so declared by the decree. Among other things, the decree of July 16, 1932, provided:

"It is further ordered that the defendant pay to the complainant the sum of one hundred and eight and 33/100 dollars per month for the term of one year, and it is further ordered that during the said year the defendant is to draw no part of his share of the profits from the business of B.F. Adams & Co., unless he pays one third of said share to the complainant.

"It is further ordered that at the expiration of the year the said defendant shall have an audit made of the books and business of B.F. Adams & Co., by an auditor to be agreed upon by the complainant and defendant, the expense of the audit to be borne jointly by the complainant and defendant. Should the audit show an actual profit, the complainant is to be paid one third of the defendant's share of said profit, less whatever amounts may have been paid to her during the year, over and above her monthly allowance of $108.33." (Italics supplied.)

Thereafter, on October 4, 1933, the parties entered into an agreement stipulating that "during January, 1934, there shall be an audit of the books of B.F. Adams & Co., for the period from July 1, 1932, to December 31, 1933, both inclusive, and during January of each year thereafter, for the preceding year, by an auditor to be agreed upon by the complainant and the defendant, the expense of such audits to be borne jointly by the parties hereto. Should any such audit show an actual profit the complainant is to be paid one-third of the defendant's share of such profit, for the period audited, less whatever amounts may have been paid her during the year, over and above her monthly allowance of one-third of the defendant's salary, and less the cost of the premiums on the life insurance policies, should her share of his profits be sufficient to pay these premiums, with the understanding that from year to year, if complainant's share should be insufficient to cover premiums paid during the preceding year, no debit balance shall be carried forward against the complainant."

The right of contract as to such allowance is recognized by this court. Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911; Merchants' Nat. Bank of Mobile v. Hubbard, 220 Ala. 372, 125 So. 335; Worthington v. Worthington, 224 Ala. 237, 139 So. 334; Rash v. Bogart et al., 226 Ala. 284, 146 So. 814; 64 A.L.R. 1277, note.

The motion of appellant made on January 9, 1935, for a reference before the register, set out the decree quoted above and the said agreement of the parties; averred that appellee, without right or authority, had declined to permit an audit, and prayed the court that "the books of the said B.F. Adams & Co. be delivered to the register of this court at a reference to be ordered by this court and held by the said register so that the books of B.F. Adams & Co. may be properly examined and a report thereon made by an auditor or accountant to be selected by the register or by this court. And your petitioner prays for such other, further and different relief as she may be entitled to receive, the premises and the evidence in support thereof considered."

Respondent filed an answer to the motion for reference, admitting that he had declined to permit the audit for the alleged reason that said agreement provided that the audit "be made by mutual consent, by an auditor who was agreed upon between the parties and at their joint expense; *** that your petitioner has not tendered her share of the audit for which she prays, nor has she, in her petition, offered to comply with the conditions provided in said agreement, that she would pay one-half of the expense of the audit which she now prays"; that such an auditor was theretofore agreed upon and reported, but petitioner declined to abide by said audit and asked that certain expense items charged under the agreement of copartnership of Adams & Co. be eliminated; that "for this reason *** respondent declined to enter into any further audit."

The question of jurisdiction of the court is raised in the answer on stated grounds: (1) Because there is no pending issue of fact between the parties to be determined; (2) because the right to examine said books for the purpose of evidence is a judicial function, which the court may not delegate (to such agency); (3) because there is a lack of jurisdiction where the petitioner has not specifically offered to perform her part of the contract "by abiding by such an audit"; (4) because it appears from the evidence that petitioner has herself declined to abide by the terms of the said contract under which she now demands such audit; (5) "because the defendant in this case had no power, by contract or otherwise, to confer upon the complainant any right to an inspection or audit of the books of the copartnership of which he is a member without the consent of his partner, which is nowhere alleged"; (6) because the respondent has paid all alimony and attorney's fees "now due," and said books are not necessary for the enforcement of any right possessed by petitioner; and (7) "because the court has no jurisdiction to compel the said copartnership of B.F. Adams & Co. to submit its books to an audit by any third person under an individual contract with one of its partners, which was entirely foreign to the partnership affairs."

Due submission was had to the court on this petition, the decrees of December 8, 1930, and July 16, 1932, answer, and agreement of copartnership dated October 4, 1933, and there was a decree denying the motion for reference from which this appeal was taken.

The decision on first appeal cited the authorities; declared that the decree awarding permanent...