Cordell v. Poteete
| Decision Date | 14 April 1976 |
| Citation | 57 Ala.App. 645,331 So.2d 400 |
| Parties | James W. CORDELL v. Lurleen Cordell POTEETE. Civ. 759. |
| Court | Alabama Court of Civil Appeals |
Powell & Powell, Decatur, for appellant.
Kenneth Shelton, Decatur, for appellee.
Appeal is taken from a decree requiring defendant to pay plaintiff the sum of $9,495.99, which was one-half of the net proceeds received by defendant in the settlement of an out-of-state lawsuit.
Plaintiff and defendant were divorced by the County Court of Morgan County on September 5, 1972. The divorce was awarded on the basis of the wife's complaint, the husband's waiver and answer, and the deposition of the wife. The decree provided that the husband pay the wife: '. . . one-half of any net proceeds derived from the net proceeds of that certain case styled James W. Cordell and Lurleen Cordell versus Jeffrey D. Pate, which is pending in the Eighth Judicial Circuit Court of Adams County, Illinois.' The husband, in his waiver and answer, had agreed that the wife was to receive said portion of any recovery in the named lawsuit.
The Illinois lawsuit resulted from a motor vehicle accident which left the husband hospitalized for some time with a fractured skull and, according to a psychiatrist, with permanent brain damage.
In October 1974, about two years after the divorce, the husband and his lawyer dismissed his ex-wife as a party plaintiff in the Illinois damage suit and settled it for $35,000. After paying the hospital, his doctors and lawyer, defendant received $16,991.98. He did not pay plaintiff one-half of this amount as directed by the divorce decree.
Plaintiff-wife, after learning of the settlement of the Illinois lawsuit, filed a petition in the court that granted the divorce, asking that defendant be required to pay her one-half of the net proceeds of the settlement as directed by the previous decree. The defendant answered by saying that he is now mentally incompetent, and was incompetent both at the time of the divorce and at the time he signed the waiver and answer agreeing to give his ex-wife one-half of the net proceeds of the Illinois lawsuit. He says his incompetency results from the brain damage suffered in the vehicle accident which was the subject of the Illinois lawsuit. He asked that the divorce decree be set aside or, in the alternative, that '. . . plaintiff should receive only an apportionate share of the proceeds he received from his accident of January of 1972, which would be nothing.'
Trial was had before the court sitting without a jury. Submission was taken on the depositions of plaintiff and Dr. Roland Hawkins, the answers of defendant to interrogatories, and the oral testimony of the defendant, which was not taken by the court reporter. The court decreed that defendant was competent at the time he executed the waiver and answer in the divorce action and that the decree rendered in said cause is valid and should be enforced.
The facts show that the parties to this proceeding were married in June 1971; that the defendant suffered brain damage as a result of a motor vehicle accident in January 1972; and that the parties separated in June 1972 and were divorced in September 1972.
In her deposition plaintiff stated that she had known defendant for a long time before their marriage and has seen him and talked to him since their divorce, and she has not seen any significant changes in his mental condition either before or after the accident. She said that her husband was sane, in control of his mental faculties and could handle his business affairs at the time he signed the waiver and answer and at the time the divorce request was submitted to the court. She...
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Davenport v. Davenport
...is conclusively presumed to support the finding of the trial court and will not be disturbed on appeal. See Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400 (1976). Since the record before us contains no transcript of the evidence presented in the proceedings below, we have nothing which ......
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Hester v. Hester
...person to be sane and casts the burden of establishing the basic matter of incompetence on the one asserting it. Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400 (1976). Mere emotional instability or depression is insufficient; the movant must show by a preponderance of the evidence that ......
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Goza v. Goza
...53 Ala.App. 545, 549, 302 So.2d 233 (Ala.Civ.App.1974). The movant must overcome a presumption of sanity. Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400 (1976). Mere emotional instability or depression is insufficient; there must be a showing of actual insanity and that the person who w......
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Duncan v. American Home Assur. Co., Inc.
...clause applies whether the decedent was sane or insane. There is a presumption of sanity under Alabama law. Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400, 402 (1970). This Court finds, however, that evidence of Mr. Robbins' medical history creates a genuine issue as to Mr. Robbins' san......