Baggett v. Baggett, 1 Div. 66

• Decision Date: 01 March 1972
• Docket Number: 1 Div. 66
• Citation: 47 Ala.App. 539,258 So.2d 735
• Parties: Ida Elizabeth BAGGETT v. Douglas S. BAGGETT.
• Court: Alabama Court of Civil Appeals

Page 735

258 So.2d 735

47 Ala.App. 539

Ida Elizabeth BAGGETT v. Douglas S. BAGGETT.

1 Div. 66.

Court of Civil Appeals of Alabama.

March 1, 1972.

Wilters & Brantley, Bay Minette, for appellant.

C. LeNoir Thompson, Bay Minette, for appellee.

WRIGHT, Judge.

Appellant first filed suit for separate maintenance, custody of minor children and support. The bill of complaint was subsequently amended to seek a divorce on the grounds of incompatibility. Appellee filed answer and cross-bill seeking divorce on grounds of adultery. Subsequent amendments by both parties disclosed ownership of real estate jointly with right of survivorship. Appellee amended to seek a divorce on the ground of incompatibility, and by answer admitted joint ownership with right of survivorship of some 80 acres of land, the home of the parties being located on one acre. Appellant prayed for a sale of the real property and division of the proceeds.

Testimony was heard orally before the court with divorce rendered on October 21, 1971. The decree granted a divorce to the husband-appellee on the ground of incompatibility. Custody of two daughters was given to appellant and custody of a son was given to appellee. Support was granted for the daughters with the payment provided for the older daughter conditioned upon her being enrolled in college and maintaining passing grades.

The decree further found that appellant's interest in the home and one acre of land was of the value of $3500, but that the home not be sold for division because it was needed as a residence by appellee and his son. Appellant was held not to have any right to the remaining 79 acres of real property jointly owned by the parties. She was ordered to convey her title in all of the property to appellee upon payment to her of the $3500.

When appellant moved from the home at the time of separation she carried with her certain items of furniture. The court found such action to amount to a property settlement as to personal property and gave to appellee all personal property remaining.

There are twelve assignments of error, all but one of which are directed to the findings and decree of the court. We shall discuss these in the order we consider most proper.

Assignment of Error Five charges error in granting a divorce to appellee on his cross-bill because the evidence in support of such bill was not believable. We do not consider such charge a proper assignment of error. As previously stated, the divorce granted appellee was upon the new ground of incompatibility established by the Legislature in Act No. 222, Regular Session 1971. This act amended Title 34, Section 20, Code of Alabama 1940. Appellant does not charge there was no evidence, or insufficient evidence, to support the ground of incompatibility, but only that the evidence was not believable.

Any legal evidence presented is believable if the trier of fact chooses to believe it. The evidence presented in the court below was legal so far as the record indicated, and there was no scarcity of it. In such a case, this court cannot supplant the judgment of the trial judge upon the matter of the believability of the evidence. If there is any legal evidence to support the decree, it will be sustained on appeal unless palpably wrong. Shivers v. Shivers, 277 Ala. 400, 171 So.2d 109.

In the absence of any precedent in this state as to the evidence necessary to support the new ground of incompatibility, and further since that issue is not presented on this appeal, we find no error in that part of the decree granting the divorce on such ground.

Assignment of Error Six alleges error because the court aided appellee by extensive examination of witnesses. We have examined that part of the transcript referred to by appellant. We find no prejudice to appellant. Though the court should not engage in adversary questioning of witnesses, we know of no rule preventing the court, particularly when sitting as the trier of fact, from seeking answers to material questions. The record does not indicate any objection made or exception taken to the questioning of the witnesses by the court. Thus, there is nothing presented for review on appeal. Rice v. Hill, 278 Ala. 342, 178 So.2d 168.

Assignments of Error One, Two, Three and Four are closely related and will be considered together. These assignments charge error in that portion of the court's decree by which the joint interest of appellant in the real property was directed to be divested from her and into appellee upon payment by appellee of $3500. Appellant also says the decree is not supported by the evidence in its division of the personal property.

We will first consider the provisions of the decree relating to the real property.

The evidence that the parties owned 80 acres of land jointly with right of survivorship was undisputed. The evidence further was without dispute that title to the property was taken jointly at the time of original purchase in 1960 and that appellant joined in the original mortgage placed on the property and in subsequent mortgages thereon. Though the notes secured by the mortgages were not in evidence, it must be assumed that appellant signed them. At the time of trial there is an indebtedness in an amount of some $5000, secured by a mortgage on all the acreage, except the one acre where the home is located.

Though the court found that the real property was acquired primarily through the father of appellee, we find no evidence in the record to substantially support any finding other than that value was paid for...