Cochran v. Cochran

• Decision Date: 10 August 1972
• Docket Number: 1 Div. 624
• Parties: Re Shirley H. COCHRAN, Jr. v. Alice Lee COCHRAN, now Alice Lee Jordan. Ex parte Shirley H. Cochran, Jr.
• Court: Alabama Supreme Court

Page 897

269 So.2d 897

289 Ala. 615

Re Shirley H. COCHRAN, Jr. v. Alice Lee COCHRAN, now Alice Lee Jordan Ex parte Shirley H. Cochran, Jr.

1 Div. 624.

Supreme Court of Alabama.

Aug. 10, 1972.

Vickers, Riis, Murray & Curran, Mobile, for petitioner.

Hamilton, Butler, Riddick & Latour, Mobile, for respondent.

COLEMAN, Justice.

We granted certiorari to review a decision of the Court of Civil Appeals, 269 So.2d 884 on an appeal to that court from the decree of a trial court rendered in a suit between a former husband and wife.

The former husband is Shirley H. Cochran, Jr. The former wife is now Alice Lee Jordan. Two children were born of this marriage.

The parties were divorced by decree of June 21, 1963. A written agreement, signed by the parties, was filed in the cause and 'ratified and affirmed' in the decree granting a divorce.

The court decreed further as follows:

1. The custody of the children is awarded to the mother subject to the right of the father to visit the children at all reasonable times.

2. The father shall pay to the mother $150.00 per month 'as support and maintenance' for the children. Said amount is to be construed to be $75.00 per month per child and shall be payable $75.00 on the 5th day and $75.00 on the 20th day of each month through the office of the clerk of the trial court, '. . . and shall continue in said amount as provided in Paragraph Six of the agreement hereinabove referred to.'

3. The father shall pay the costs of the suit, '. . . and in consideration of the said agreement,' the mother waives her right to claim any alimony or support for herself.

All other portions of the agreement not specifically stated in the decree are incorporated in and made part of the decree.

Jurisdiction is retained '. . . as to any further or future orders or decrees as to the care, custody and maintenance of said minor children as to the Court may seem proper and as changed conditions may require.'

The material provisions of the above mentioned agreement are as follows:

The date of the agreement is March 30, 1963. In its premises, the agreement recites that the parties were married in 1956, lived together until September 23, 1961, and are now living separately and apart;

That the mother has filed '. . . a bill for support and maintenance and intends to amend said bill asking for a divorce, custody of the children and a property settlement; . . ..'

That both parties desire '. . . to finally and for all time settle and determine their property rights, child custody alimony, maintenance and support of the children, all dower and homestead rights, together with any and all other rights existing between the said parties growing out of the marriage relations that may have heretofore existed between them.'

In consideration of their mutual desires, the parties '. . . do bind and obligate themselves as follows:'

1. The mother is to have custody of the children, aged two and four years, and the father is to have visitation rights.

2. All furniture and related items of personal property located in the home of the parties are to be the property of the mother.

3. A 1959 Plymouth station wagon is to be the property of the mother. The father delivers a bill of sale to facilitate a change of the license registration and agrees to pay any unpaid balance of the purchase price of the station wagon.

4. The father agrees to pay to the mother '. . . the sum of $150.00 per month for their said children, ($75.00 per child). The payment for support and maintenance of said children shall be payable as follows: On or before the 5th day of each month the husband is to pay to the wife the sum of $75.00. On or before the 20th day of each month the husband is to pay to the wife the sum of $75.00. The payments in this paragraph to continue until the wife is paid $50,000.00 as provided in Paragraph Six, and until the second mortgage, hereinafter referred to, shall have been paid by the husband, both as hereinafter provided.'

5. The home is owned jointly by the parties with right of survivorship. It is subject to a first and also a second mortgage. The father agrees to convey said homeplace to the mother, and she agrees to assume and promises to pay the first mortgage as therein provided. The father agrees to pay, on or before August 5, 1965, the balance due on a note for $7,000.00, dated January 4, 1962, and secured by the second mortgage on the homeplace.

'6. The husband does hereby agree to pay to the wife on or before December 5, 1965, the sum of Fifty Thousand and no/100 ($50,000.00) Dollars, for the use and benefit of the children.'

7. The husband agrees to pay $1,000.00 to the wife's attorneys on or before December 5, 1965.

8. The father agrees to convey to the wife all of his rights and interests in and to a trust established by the will of Shirley H. Cochran, deceased, as provided by an instrument attached to and made a part of the agreement and designated Exhibit A. 'The purpose of this instrument being to insure that Paragraphs Five, Six and Seven of this instrument are complied with.'

9. The father and mother agree that the terms of the agreement shall be entered as a part of any divorce decree between them.

'10. The husband is to pay the costs of said divorce proceedings and the wife waives her right to claim any alimony or support for herself.'

Exhibit A, which was made a part of the agreement as noted above, is in substance and effect a conditional conveyance of the interest owned by Shirley H. Cochran, Jr., in the trust created by the will of his father, Shirley H. Cochran. In the body of the instrument itself, Exhibit A is referred to as 'this mortgage.'

Exhibit A recites that in the divorce decree it was ordered by the court: (1) that 'Shirley H. Cochran, Jr., pay to the said Alice Lee Cochran the sum of $50,000.00 on August 5, 1965'; (2) that Shirley H. Cochran, Jr., pay to the said Alice Lee Cochran as fee for her attorneys $1,000.00 on December 5, 1965; and (3) that Shirley H. Cochran, Jr., convey to Alice Lee Cochran all his interest in the home, and that, on or before December 5, 1965, he pay the balance due on the note for $7,000.00 secured by a second mortgage on the home; that, under the trust, it is provided that if Shirley H. Cochran, Jr., reaches the age of thirty years alive, the trust shall terminate and the trustee shall pay over to Shirley H. Cochran, Jr., all corpus and undistributed income free of the trust, but subject to a charge of $100.00 per month payable to a sister of testator as long as she lives.

Exhibit A further recites that Shirley H. Cochran, Jr., will reach the age of thirty years on August 5, 1965, and that in the divorce decree the court ordered that Shirley H. Cochran, Jr., secure the payment of the aforesaid sums by mortgage and assignment of all his interest in the trust.

Exhibit A further recites that Shirley H. Cochran, Jr., in consideration of the premises and in compliance with the decree, does transfer and convey to Alice Lee Cochran all his interest in the trust estate, to be held by her, '. . . her heirs and assigns forever'; on condition, however, that if Shirley H. Cochran, Jr., shall (1) pay the $50,000.00 to Alice Lee Cochran on December 5, 1965, (2) pay the $1,000.00 to her as attorneys' fee on December 5, 1965, and (3) pay the balance due on said $7,000.00 note secured by second mortgage on or before December 5, 1963 (sic), then the instrument shall be void, otherwise remain in full force and effect.

Exhibit A further recites that upon default by Shirley H. Cochran, Jr., in payment of any one or more of the aforesaid sums when due, then the said Alice Lee Cochran 'may foreclose this mortgage' and sell the property 'mortgaged hereby' pursuant to Title 47, § 164, et seq., after notice and apply the proceeds of sale, first to payment of costs of sale, second to payment of the aforesaid sums, and third pay the balance to Shirley H. Cochran, Jr.; and that, at any sale under Exhibit A she may bid for and purchase any or all of said property as if she were a stranger thereto.

Exhibit A further recites that it is subordinate to a prior deed of trust executed by Shirley H. Cochran, Jr., and that he assumes and agrees to pay the $100.00 per month to testator's sister as long as she lives.

On December 3, 1965, the father, Shirley H. Cochran, Jr., filed petition to modify the divorce decree of June 21, 1963. Modification was sought on the ground that due to unforeseen circumstances set out in detail in the petition, the father is unable to pay the balance of the $50,000.00 payable December 5, 1965. The trial court, on December 3, 1965, decreed that the balance of the $50,000.00 shall not become due December 5, 1965, and retained jurisdiction for future orders.

On December 9, 1966, the father filed another petition to modify the divorce decree. The father alleges that on October 23, 1965, the mother married Charles Dixie Jordan, and that he adopted the two children as evidenced by decree of August 18, 1966. The natural father, Shirley H. Cochran, Jr., prays that the court decree that the payments of $150.00 per month for support and maintenance of the two children shall cease to become due from the natural father effective on the date of the adoption decree. The natural father prays also that the court order that the remainder of the award of $50,000.00 be annulled and declared to be of no further force and effect.

After filing other pleadings, the mother filed an answer and several pleas. As to the $50,000.00 award, the mother alleged in Pleas V and VI that the award is alimony in gross and not subject to modification by the court.

On November 21, 1968, the trial court rendered decree from which the father, Shirley H. Cochran, Jr., appealed to the Court of Civil Appeals. In the respects here pertinent, the court found that the $50,000.00 award was a property settlement and not subject to modification, citing Sullivan v. Sullivan, ...