Campbell v. Campbell

• Court: Alabama Court of Civil Appeals
• Citation: 371 So.2d 55
• Parties: Nannie Mae T. CAMPBELL v. Robert W. CAMPBELL. Civ. 1714.
• Decision Date: 04 April 1979

Page 55

371 So.2d 55 Nannie Mae T. CAMPBELL
v.
Robert W. CAMPBELL. Civ. 1714. Court of Civil Appeals of Alabama. April 4, 1979.
Rehearing Denied May 16, 1979.

Page 57

Thomas Reuben Bell, Sylacauga, for appellant.

C. W. McKay, Jr., Sylacauga, for appellee.

BRADLEY, Judge.

The parties were divorced on March 29, 1978. By an agreement incorporated into the March 29 decree the parties' real and personal property was divided. Under this agreement the wife deeded to the husband her one-half interest in the parties' jointly owned home in exchange for other property.

The parties reconciled and were remarried on May 4, 1978. The wife moved back into the parties' home, and on May 8 the husband conveyed a deed to her granting the wife a one-half interest in the home as a joint tenant with right of survivorship. The reconciliation proved short-lived. The husband moved out of the home in September and filed for divorce in October 1978 on the ground of incompatibility. The husband further alleged that the wife had fraudulently induced him to deed over a one-half interest in the home and requested that the court set aside that conveyance.

The wife, in her answer, denied any fraud. She also counterclaimed for divorce, requesting alimony and a division of property.

After a hearing at which the husband and wife were the only witnesses, the trial court granted the divorce. Regarding the conveyance by the husband of a one-half interest in the home to the wife, the court found: that the parties had entered into a marital agreement before their remarriage that their financial position would be restored to the status in which both parties stood before their first divorce in March 1978; that in accordance with this agreement the husband had conveyed the one-half interest in the home to the wife; that the wife had not performed her part of the agreement; and that the conveyance by the husband was therefore void. The court divested the wife of any interest in the home and ordered her to vacate the premises.

Regarding the wife's petition for a division of property and alimony, the court found: that there had been no material change in the status of the parties since their first divorce and that each should therefore retain the property received under the settlement agreement incorporated within the March 29 decree. The court ordered no further division of property and denied the wife's petition for alimony.

In briefs the wife concedes that there was an agreement to "put everything back like it was" before the parties' first divorce. However, the wife contends that this agreement was wholly oral and therefore void under the statute of frauds. Code of Alabama 1975, § 8-9-2(4). The wife also contends that the agreement was made after, and not prior to, their marriage and that the conveyance by the husband must therefore be presumed a gift. Regarding the court's order divesting her of any interest in the home, the wife contends that this action was beyond the jurisdictional powers of the court. Finally, the wife contends that the trial court's refusal to grant her alimony and a further division of property was an abuse of discretion.

This court is faced with two issues. The first is whether the findings and order of the trial court regarding the wife's one-half interest in the home were within the court's jurisdictional powers. We find that they were. The second issue is whether the trial court abused its discretion in refusing to award alimony or a further division of property to the wife. We find no abuse of discretion. We therefore affirm.

We note initially that the wife raises the statute of frauds for the first time on appeal. Her contention that the oral marital agreement between the parties

Page 58

violates the statute and is void is not well taken. It is the long established law in this state that a defense of the statute of frauds must be raised below in the pleadings or by motion or it is considered waived. Tidmore v. Handy, 277 Ala. 20, 166 So.2d 855 (1964); Spruiell v. Stanford, 258 Ala. 212, 61 So.2d 758 (1952). ARCP 8(c). If the contract or agreement is admitted or satisfactorily proved, it will stand. Spruiell, supra; Shakespeare v. Alba, 76 Ala. 351 (1884).

In the instant case we note that the record is devoid of any pleading or motion by the wife raising the statute. We note that the wife, in her brief, admitted to the substance of the agreement. Finally, we note that both parties testified that the agreement was to "put everything back like it was" before their first divorce. The only disputed fact was when this agreement was reached. The husband testified that the parties agreed before their remarriage. The wife stated that it was some three to four weeks after the second marriage. The trial court evidently accepted the husband's testimony. We make our review in this regard based upon the principle that where there is disputed evidence and the...