Adkins v. Adkins
| Citation | 57 Ala.App. 715,331 So.2d 725 |
| Parties | Leon Edward ADKINS v. Sarah Frances ADKINS. Civ. 810. |
| Decision Date | 05 May 1976 |
| Court | Alabama Court of Civil Appeals |
Taylor & Taylor, Russellville, for appellant.
Holt, McKenzie & Holt, Florence, for appellee.
This is an appeal from a judgment of construction and enforcement of a prior judgment for divorce and property division. We affirm.
The parties were divorced by judgment entered July 12, 1973. The pertinent part of that judgment is as follows:
On June 6, 1975, Mrs. Adkins filed a petition styled 'A Petition To Cite For Contempt and For Supplemental Decree.' The essence of the petition was that under authority of the original divorce judgment, plaintiff had for some time attempted to sell the property for $50,000.00; that defendant refused to execute the necessary instruments of conveyance and had harassed and embarrassed plaintiff and prevented the sale; that defendant was in contempt of the court by his failure to abide by the decree. The petition then requested an order supplementing the original judgment by authorizing plaintiff to secure a sale and directing defendant to cooperate by executing necessary instruments of conveyance of his interest.
The petition upon being presented to the court was set for hearing on June 16, 1975. Defendant appeared specially, objecting to the early setting for hearing. However, defendant at the same time filed an answer and cross-bill. The cross-bill requested construction of the original judgment and averred that plaintiff had failed to maintain the property as directed. Certain other parties were alleged to be interested in the property and were requested to be made parties.
The court continued the matter generally to be reset upon motion of either party. It recognized the oral offer of defendant to pay $51,000.00 for the property if such offer was accepted the same day.
On July 3, 1975, plaintiff filed answer to the cross-bill. The same date, defendant amended his cross-bill by offering to pay into court the sum of $51,000.00 less the mortgage indebtedness if the property were conveyed to him. However, it was requested that the interest of plaintiff be charged for the alleged cost of necessary maintenance not performed. The amended cross-bill was answered on July 15 with a counter proposal of sale and purchase.
September 9, 1975, plaintiff moved for an oral hearing which was set for October 29, 1975. On October 22, 1975, a written motion for continuance on the ground of a conflicting setting in Walker County was filed by defendant. Denial of continuance was given orally via telephone by the judge and written on the motion. On October 24, 1975, defendant filed written motion for recusal by the judge on the grounds of bias and prejudice against defendant. The motion avers bias and prejudice because of the refusal of the requested continuance and because the original petition of plaintiff for contempt had been set with only 10 days' notice. On October 28, 1975, defendant withdrew his offer of purchase.
The court proceeded to hear the matter on October 29, without the presence of defendant or his counsel. Judgment was entered authorizing plaintiff to secure a good faith sale. The register was directed to convey the interest of defendant in event of sale. Report and accounting of the sale was directed to be made to the register.
Motion for rehearing was filed, set and heard by the court. Motion was denied.
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Jenkins v. Jenkins
...law is that the granting or denying of a motion for a continuance is within the sound discretion of the trial court. Adkins v. Adkins, 57 Ala.App. 715, 331 So.2d 725 (1976). Specifically, as the husband points out in brief, this general principle of law has been applied in the instance wher......