Cain v. Cain

• Decision Date: 30 May 1984
• Citation: 452 So.2d 874
• Parties: Donald P. CAIN v. Elizabeth G. CAIN. Civ. 4102.
• Court: Alabama Court of Civil Appeals

Page 874

452 So.2d 874

Donald P. CAIN v. Elizabeth G. CAIN.

Civ. 4102.

Court of Civil Appeals of Alabama.

May 30, 1984.

W.E. Garrett, Atmore, for appellant.

Robert A. Wills, Bay Minette, for appellee.

WRIGHT, Presiding Judge.

This is a divorce case.

Appellant, Donald P. Cain (husband), and appellee, Elizabeth G. Cain (wife), were married for twenty-five years when they were divorced in August 1980. The parties have two children, an adult daughter and a son who attained majority in February 1983. An agreement concerning custody of the children and division of the parties' property was incorporated into the final decree of divorce. A dispute arose over the interpretation and execution of some of the provisions of that agreement.

At the time of the divorce the parties jointly owed Federal Land Bank (FLB) and Baldwin County Savings and Loan (BCS & L) a total amount approximating $98,000. The decree provided that wife was to sell the Driftwood Fishing Supply and use the proceeds to pay the parties' indebtedness to FLB and BCS & L. The business had been in wife's name since 1966, and she had operated it since that time. After wife sold the business for $130,000, she paid FLB and BCS & L a total of $97,915.98, leaving a remainder of $32,084.02 to be divided between the parties.

The divorce decree provided that no alimony would be paid to either party. Husband was granted reasonable visitation rights to see his then minor son. In lieu of child support, certain Social Security benefits were to go to wife and minor child. Rental property held by both parties was ordered sold with the net proceeds to be divided equally. Wife received the marital residence of the parties. A 120-acre parcel of property was divided, with wife taking forty acres and husband taking the remaining acreage. The retention of personal items was agreed upon but not specified in the decree.

On October 27, 1982, husband petitioned the Baldwin County Circuit Court to order wife to show cause why she had not paid husband monies the court ordered be paid him, had not paid FLB what the court directed her to pay, had not permitted husband to get certain personal items due him, and why wife had not transferred to husband the mineral rights granted him in the court order.

The parties reached a settlement agreement in January 1983. The final terms of the settlement were to be further clarified by a subsequent income tax accounting to be prepared by a certified public accountant. Afterwards, a final order was to be rendered by the court. In April 1983 the court entered the order. That order was subsequently set aside upon motion of the husband. Additional hearings were subsequently held and another order entered. Husband appeals.

Three issues are raised: (1) whether the trial court can construe the agreement of the parties which was incorporated into the final judgment of divorce, (2) whether the ruling regarding the division of personal property is arbitrary, capricious and against the great weight of the evidence, and (3) whether the trial court can require husband to pay child support for a child who has attained majority.

With regard to the first issue, husband contends that the trial court erred when it construed the following portion of the parties' agreement.

"It is hereby agreed by the parties hereto that the store and the above described real property shall be placed on the market for sale as soon as reasonably possible and shall be sold for the highest obtainable market price. The proceeds from said sale shall be first used to liquidate certain indebtedness of the parties, a mortgage to the Federal Land Bank which is encumbering the residence of the parties hereto and the property on which it is located and the real property owned by the parties and located in Section 34, Township 2 South, Range 4 East, Baldwin County, Alabama and a mortgage to the Baldwin County Savings and Loan Association encumbering the Driftwood Fishing Supply and the real property on which it is situated. Any proceeds remaining from the sale of said property after the payment of the aforementioned indebtedness shall be equally divided between the parties."

The court specifically interpreted the preceding provision:

"to permit the wife to deduct from the total sale price of the Driftwood Fishing Supply all ordinary and necessary expenses in the closing out of the business and those ordinary and necessary expenses incurred in the actual sale prior to a division of the proceeds from said sale between the parties hereto."

Husband asserts that a property settlement provision of a divorce decree cannot be modified or changed, except to correct clerical errors, after a lapse of thirty days from entry of final judgment approving the settlement and cites DuValle v. DuValle, 348 So.2d 1067 (Ala.Civ.App.1977), in support thereof. Husband contends that the agreement is clear that once the business was sold and the debts paid, the proceeds should be equally divided. Under husband's contention, the remaining proceeds from the sale of the business and payment of debts owed to FLB and BCS & L totalled $32,084.02 and that his half would be $16,042.01. He states that wife gave him a check for $10,000, leaving a balance of $6,042.01 still due him.

Wife contends that it was the intent of the parties and the reasonable construction of the agreement that all costs of the sale and expenses related thereto should be first...