Alexander v. Davis, 3 Div. 688

• Decision Date: 04 November 1954
• Docket Number: 3 Div. 688
• Parties: Patricia Davis ALEXANDER v. Horace M. DAVIS.
• Court: Alabama Supreme Court

Page 614

75 So.2d 614

261 Ala. 654

Patricia Davis ALEXANDER v. Horace M. DAVIS.

3 Div. 688.

Supreme Court of Alabama.

Nov. 4, 1954.

Ball & Ball, Montgomery, for appellant.

Hill & Robison, Montgomery, for appellee.

CLAYTON, Justice.

This appeal is by Patricia Davis Alexander, formerly Patricia Davis, who for brevity will herein be called Patricia, from a decree of the Circuit Court of Montgomery County, Alabama, in equity, dated December 7, 1953, modifying a former divorce decree dated August 27, 1952, in her favor against Horace M. Davis, who for brevity will herein be called Horace.

The modification changed the former decree, awarding Patricia exclusive custody of a girl child of the parties about fifteen months old, by awarding Horace custody for part time and reducing the amount payable by him to Patricia for the support of the child.

The question is whether the court erred in modifying its previous decree.

Horace Davis and Patricia Schoen were married on February 15, 1950. One child, a daughter Priscilla, was born to them on May 5, 1951. On August 27, 1952, a divorce was granted to Patricia on grounds of cruelty. Incident to the divorce decree and incorporated therein, was the following agreement between the parties:

'State of Alabama

Montgomery County}

'Patricia Davis

#24492 vs.

Horace M. Davis}

'Whereas, there is now pending in the Circuit Court of Montgomery County, Alabama, in Equity, divorce proceedings wherein Patricia Davis is the complainant and Horace M. Davis is the respondent, and

'Whereas, the parties have reached an agreement with respect to the care, custody and control of Priscilla Davis, the minor daughter of Patricia Davis and Horace M. Davis; the amount to be paid by Horace M. Davis to Patricia Davis as a property settlement and also the amount to be paid for the maintenance and support of the said minor daughter of the undersigned; as well as to a division of the real and personal property belonging to the undersigned; and the payment of the costs of these proceedings; and

'Whereas, it is the wish and desire of the undersigned that in the event this Honorable Court sees fit to grant a decree of divorce in the cause now pending; then, this agreement be incorporated and made a part of the decree by reference.

'Now, Therefore, is is agreed by the parties as follows:

'1. That the undersigned, Patricia Davis, shall have the exclusive care, custody and control of Priscilla Davis with the right and privilege given and granted to Horace M. Davis to visit the said Priscilla Davis at any and all reasonable times. It is contemplated by the undersigned that Patricia Davis will move to the State of Georgia, in which event she shall have the right to take the said Priscilla Davis with her; however, the said Patricia Davis shall not remove the said minor child, Priscilla Davis, outside of the continental limits of the United States of America without the consent of Horace M. Davis. The right and privilege of the said Horace M. Davis to visit the said Priscilla Davis in the State of Georgia or any other State of the United States at all reasonable times is hereby expressly given and granted to him. Any difference which may arise between the parties relating to the time at which Horace M. Davis may visit said child shall be decided by her mother and her decision shall govern in such matter unless and until otherwise ordered by a court having jurisdiction. Any future question which may arise with respect to the matters provided for in this paragraph shall be submitted only to the court having jurisdiction in the place where Priscilla Davis is then living with her mother.

'2. Beginning on the first day of January, 1953, and on the first day of each and every succeeding month thereafter, Horace M. Davis shall pay to Patricia Davis by delivery to her at her then place of residence the sum of $150,00 monthly for the maintenance and support of the said minor child, Priscilla Davis, and said monthly payments shall continue until said child is 18 years of age.

'3. There is now in force and effect an educational policy in favor of Priscilla Davis and in the amount of $10,000.00 which matures on Priscilla Davis reaching the age of eighteen years. Horace M. Davis shall maintain and keep current the premiums on this said educational policy and as often as requested furnish Patricia Davis with evidence that the premiums are current.

'4. Horace M. Davis shall, at the time the deed referred to in paragraph 7 hereof is delivered, deliver to Patricia Davis or her attorneys a cashier's or certified check payable to Citizens & Southern Bank, Atlanta, Georgia for an amount sufficient to pay the $5000.00 note, with the interest thereon, made by Patricia Davis and endorsed by Horace M. Davis and said check shall be promptly used to pay off said note.

'5. The ownership of the 1952 Pontiac automobile now in possession of Patricia Davis is hereby transferred, set over and assigned to the said Patricia Davis by the said Horace M. Davis free and clear of any liens or encumbrances against same and at the time the deed referred to in paragraph 7 herein is delivered, the said Horace M. Davis shall deliver to Patricia Davis evidence that all amounts presently due or to become due have been fully paid on said automobile under the contract with General Motors Acceptance Corporation whereby the said automobile was purchased.

'6. Horace M. Davis shall pay to Patricia Davis the sum of $1,000.00 by cash on the day and date a decree of divorce is entered in this cause.

'7. Patricia Davis for and in consideration of the premises and the agreements herein contained shall make, execute and deliver to Horace M. Davis a deed, subject to any and all existing mortgages, liens and encumbrances against said real estate, conveying to the said Horace M. Davis the interest of the said Patricia Davis in any and all the real estate presently owned by the said Patricia Davis jointly with the said Horace M. Davis and the said Horace M. Davis assumes the payment of any and all existing mortgages and other liens and agrees to hold Patricia Davis harmless against all loss, liability, cost and expense by reason of any claim being made against her in connection with said mortgages and other liens. Said deed shall be a statutory warranty deed executed and delivered by the said Patricia Davis and delivered to Horace M. Davis on the day and date a decree of divorce is rendered in this cause.

'8. The said Horace M. Davis shall pay all of the costs in these proceedings, including a fee of $250.00 to Ball & Ball, the solicitors for Patricia Davis at the time the divorce is granted.

'9. The said Patricia Davis shall have the right and privilege of removing any and all of the household furnishing from the home she is presently occupying on the Narrow Lane Road, Montgomery County, Alabama, except those listed on the schedule attached hereto which shall belong to him; and the said Horace M. Davis does hereby give, grant and release to the said Patricia Davis whatever interest he may have in and to said furnishings. It is further understood and agreed, however, that the said Patricia Davis shall remove or cause to be removed said furnishings from said premises on Narrow Land Road, Montgomery County, Alabama, on or before the 1st day of September, 1952, and any furnishings not removed on or before said date shall be and become the sole property of Horace M. Davis. Horace M. Davis will pay the sum of $150.00 on the expense of packing and moving the household goods of Patricia Davis to Atlanta, Georgia.

'10. It is further understood and agreed between the parties that, with the exception of the provisos relative to the support and maintenance of the minor child, Priscilla Davis, the terms and conditions of this agreement constitute a full and complete property settlement between the parties and the acceptance of same by Patricia Davis constitutes full and complete satisfaction of any and all claims that the said Patricia Davis may have in and to any and all of the property of the said Horace M. Davis; and full and complete satisfaction and payment of any claim Patricia Davis may have now or in the future at the wife of Horace M. Davis to alimony.

'In Witness Whereof, we have hereunto set our hands and seals on this the 25th day of August, 1952.

'/s/ Patricia Davis (Seal)

'Patricia Davis

'/s/ Horace M. Davis (Seal)

'Horace M. Davis

* * *'

Horace visited his daughter in September. He asked to see her at a date in October but was advised by letter from an attorney in Atlanta that the date requested was not convenient, and another date was suggested by that letter. The attorney also asked that future arrangements for visits to the child be made through him. Horace again visited his daughter in December in Atlanta at the home of Mrs. Schoen, the maternal grandmother. His reception there was very cordial. In January, 1953, Mrs. Davis, the paternal grandmother of the child, suffered a 'stroke' in Miami, Florida, at which time Horace requested that Patricia allow him to take Priscilla for two weeks to visit her sick grandmother in Miami. He was advised that Patricia did not consider it for the best interest of the child, and she was sorry that she would have to refuse his request. Later, on January 20th, he asked, through the attorney, that Patricia reconsider the matter of allowing Priscilla to visit him for two weeks. He was then advised that Patricia had remarried and moved to California, a later letter stating her mailing address there.

After having made only one monthly payment of $150 in accordance with the decree, Horace, on March 12, 1953, filed a petition in the Circuit Court of Montgomery County paying into court past due payments totaling $300 for the months of February and March, and averring that Patricia had moved to California, and praying that the court enter a decree requiring future payments to be made to the register of the court. The court,...