Amason v. Amason

• Decision Date: 16 December 1970
• Docket Number: 6 Div. 75
• Citation: 242 So.2d 392,46 Ala.App. 345
• Parties: Marion B. AMASON, Jr. v. Margaret I. AMASON.
• Court: Alabama Court of Civil Appeals

Page 392

242 So.2d 392

46 Ala.App. 345

Marion B. AMASON, Jr. v. Margaret I. AMASON.

6 Div. 75.

Court of Civil Appeals of Alabama.

Dec. 16, 1970.

Rogers, Howard, Redden & Mills, Birmingham, for appellant.

Corretti, Newsom, Rogers & May, Birmingham, for appellee.

BRADLEY, Judge.

The appeal to this court is from a decree of the Circuit Court of Jefferson County, in Equity, dated May 27, 1970, modifying a decree of divorce rendered in 1968 by the same court divorcing the parties to this proceeding from the bonds of matrimony.

The decree of divorce was granted in favor of the wife on the ground of cruelty.

There was incorporated in the decree of divorce, an agreement entered into by the parties to the divorce action.

The agreement provided that the wife was to have custody and control of the fourteen year old son, with right of reasonable visitation given to the husband. It also provided that the husband was to quit-claim title in a 1956 (sic 1965) automobile to the wife, with the further promise that the husband was to continue making the payments on said car until it was paid for.

There was no provision in the agreement or in the decree requiring the husband to make support and maintenance payments for the minor child.

The Petition to Modify the Divorce Decree filed by appellee here--complainant in the divorce proceeding--sought to modify the divorce decree on the ground that appellee and appellant owned certain real property jointly and with right of survivorship and sought an order from the trial court requiring a sale of said property with proceeds being divided equally between appellee and appellant.

Appellee, in an affidavit contained in the record, stated under oath that the property in question was the family homestead beginning in 1966 and continuing up to the time she was assaulted by appellant. She states that she and her husband bought the land and paid for the construction of the house thereon. She further states that legal title was vested in Arley M. Sides and his wife, Edna M. Sides.

Appellee states that Arley M. Sides was a brother of her former husband, and that title was placed in said brother so that the property would not be available to creditors of her husband, who was in the trucking business at that time.

Legal title to the property in question was transferred to appellee and appellant by the Sides some eleven months after the decree of divorce. The appellee and appellant received ownership jointly with right of survivorship.

Back in 1968 in the bill of complaint and in her commission, appellee stated under oath that she and her husband did not own any property jointly.

On May 27, 1970 the trial court modified the decree of divorce rendered on March 6, 1968 by ordering the Register to sell the property jointly owned by the parties to the divorce decree, requiring the father to pay $100.00 per month for the support and maintenance of his minor son and to pay a reasonable attorney's fee to the attorney for petitioner-appellee.

In his Application for Rehearing, appellant objected mainly to that part of the modification decree requiring a sale of the real property.

Appellant appeals from the decree of May 27, 1970 modifying the decree of divorce, and assigns two grounds as error:

One. That the trial court erred in that part of the decree of May 27, 1970 that required the sale of the jointly owned real property; and

Two. That the trial court erred in rendering the decree of May 27, 1970.

Under assignment of error two appellant argues that the decree of May 27, 1970 was improperly rendered, because the matter was not at issue when the decree was entered by the trial court.

Appellant says that after the petition for modification was filed and he had notice thereof, he failed to file an answer or other responsive pleading, and the trial court did not enter a Decree Pro Confesso prior to a decision on the petition for modification.

From aught that appears from the record, the appellant did not object to the decree of the court entered in response to the petition for modification until the brief was filed with this court.

It might be said that appellant should have raised this issue prior to the filing of his brief in this court in order to be heard thereon; however, this aspect of the issue does not alter or affect our view that a petition to modify a decree of divorce is not in the nature of an original bill of complaint nor a cross-complaint. Hence, it is not necessary for a court to enter a decree pro confesso prior to deciding an issue raised by a petition to modify a divorce decree. Ex parte Lavender, 207 Ala. 666, 93 So. 661.

In Ex parte Lavender, supra, the trial court had before it a cross-petition filed by the wife in opposition to her husband's petition seeking a modification of a divorce decree as it related to an allowance to the wife of alimony.

The wife filed in the Supreme Court a petition for the Writ of Mandamus to be issued requiring the trial judge to enter a decree pro confesso as a result of the failure of her husband to answer her cross-petition.

The Supreme Court said in response to the request for mandamus:

'Mrs. Lavender's (wife) counter petition not being a bill or a cross-bill, the failure of Morgan (husband) to plead thereto, however prolonged, gave no right to decree pro confesso. It is upon bills, original or cross, that such decrees may be granted. * * * Hence the court below correctly declined to enter decree pro confesso on Mrs. Lavender's counter petition.'

We think the rule laid down in Ex parte Lavender, supra, applies with equal force to the point raised by assignment of error two, and conclude that assignment two is without merit.

In his assignment of error one appellant says the trial court erred in that part of its May 27, 1970 decree wherein it ordered the sale of jointly held real property, and the proceeds therefrom divided equally between the parties.

Appellant says, in support of assignment one that the real property in question would not properly be the subject of a petition to modify, because divorce decrees are subject to modification after thirty days from their rendition only with respect to periodic payments of alimony and child support.

The record reveals no provision for alimony or child support in the decree of divorce or in the agreement entered into by the parties to the divorce suit and made a part of the divorce decree.

The agreement which was made a part of the decree did require that appellant quit-claim his interest in a 1956 (sic 1965) Chevrolet to the appellee, and that appellant should make the installment payments thereon as they became due.

It also should be remembered that appellee in her original bill of complaint seeking a divorce, and in her sworn commission filed in support of the complaint, stated that the parties did not jointly own any real property.

The only reference to a 'property settlement' in the agreement made a part of the decree, and the decree itself, was the requirement that appellant transfer his interest in the Chevrolet automobile to appellee and make the payments thereon as they became due.

Appellant cites us to the Alabama Supreme Court cases of DuBoise v. DuBoise 275 Ala. 220, 153 So.2d 778, and Epps v. Epps, 218 Ala. 667, 120 So. 150, for the proposition that a divorce decree can be modified after thirty days, only as it relates to periodic payments of alimony or child support; and that decrees providing for property settlements or alimony in gross cannot be modified after the expiration of thirty days.

The Supreme Court in DuBoise v. DuBoise, supra, said:

'We are not cited to any case which holds that a court can reserve power to amend a 'property settlement,' as...