Allen v. Allen
| Decision Date | 22 November 1972 |
| Citation | 269 So.2d 914,49 Ala.App. 200 |
| Parties | Hilton H. ALLEN v. Elnora J. ALLEN. Civ. 17. |
| Court | Alabama Court of Civil Appeals |
Wilters & Brantley, Bay Minette, for appellant.
E. E. Ball, Bay Minette, for appellee.
This matter began by Bill of Complaint for separate maintenance by Elnora J. Allen against Hilton H. Allen. Submission was had upon answer and waiver and the oral deposition of the plaintiff. Decree of separate maintenance was rendered on June 15, 1971. On February 7, 1972, bill of complaint for divorce was filed by Mrs. Allen requesting as gross alimony all of the real estate jointly owned by the parties. Answer and cross-complaint for divorce and sale of the real property for division was filed by Mr. Allen.
Testimony ore tenus was heard by the court on bill and cross-bill on April 17, 1972. Final decree was rendered by the court on April 18, 1972. By the decree a divorce was granted to Mrs. Allen, and the real property was divided between the parties roughly in halves by acreage, the wife being given the home place. On May 2, 1972, Mrs. Allen filed a motion for rehearing alleging therein that by its decree the court had divided the only income producing acreage which was under lease as a unit. Thus the wife would be deprived of her main source of income by the division. It was further alleged in the motion that the court had previously indicated that the income producing property was to be given in the decree to Mrs. Allen.
The motion for rehearing was set for hearing. Upon hearing, the court on May 12, 1972, modified its original decree and entered a decree granting to Mrs. Allen an additional 20 acres of land which had previously been given to Mr. Allen.
On June 26, 1972, Mr. Allen filed notice of appeal from the decree rendered on May 12, 1972. This was the decree granting the rehearing and modifying the original decree of divorce. The certificate of appeal states the appeal is from the decree on rehearing. Thus the only matter for our review on this appeal is the decree granting the rehearing and modifying the original decree.
The original decree not having been appealed from, its propriety or any error committed by the court in entering the same is not available for our consideration on this appeal. Schuler v. Nelson Weaver Companies, 270 Ala. 727, 121 So.2d 908; Central of Ga. Railway Co. v. Burton, 277 Ala. 377, 170 So.2d 812.
This is an unusual occurrence, in that the original decree was entered in favor of the plaintiff below and motion for rehearing was filed by the plaintiff seeking additional relief. Such rehearing was granted and the original decree modified to give the relief requested on motion for rehearing. Such modification apparently occurred solely upon the averments of the motion and argument of counsel without additional testimony. The hearing on the motion and the entry of the modification or in reality the amendment of the original decree all occurred in the thirty days in which the original decree was in the breast of the court under Equity Rule 65.
The effect of this appeal from the decree of May 12, 1972, is not to complain of or attack the provisions of the original final decree of April 18, 1972, but only to complain of the additional relief granted to appellee by the last decree.
The assignments of error of appellant do not in fact charge error in the decree of May 12, 1972 but are directed to the matters previously involved in the original decree. Those assignments are as follows:
'1. The Court's Decree is contrary to the evidence in this case.
2. The Court's Decree is contrary to the law in this case.
3. The Appellant and Appellee own the property involved in this litigation jointly with a right of survivorship. The Court erred in not making an equitable division of this property.
4. The Court erred in dividing the property of the Appellant and Appellee without first determining the value of the property so divided.
5. The testimony shows that the earning capacity, ages and needs of the Appellant and Appellee are virtually equal and the Court erred in not giving the Appellant an equal share of the property...
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Gamble v. Gamble
...the court simply divided certain of the properties which the parties had accumulated, which is entirely proper. See Allen v. Allen, 49 Ala.App. 200, 269 So.2d 914. We cannot say, in the case at bar, that the trial court was clearly and palpably wrong in the division of the property. This is......
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Hamaker v. Hamaker
...the property of the parties is a matter addressed to the discretion of the trial court, subject only to review for abuse, Allen v. Allen, 49 Ala.App. 200, 269 So.2d 914. The ony question properly before us is whether or not the trial court abused its discretion in awarding the personal prop......
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Caldwell v. Caldwell
...not be disturbed on appeal except upon showing of palpable abuse. Hallman v. Hallman, 51 Ala.App. 460, 286 So.2d 863; Allen v. Allen, 49 Ala.App. 200, 269 So.2d 914. We find no abuse of discretion in the division of property by the decree. Neither do we find any abuse of discretion in the f......