DuBoise v. DuBoise

• Decision Date: 16 May 1963
• Docket Number: 1 Div. 75
• Citation: 275 Ala. 220,153 So.2d 778
• Parties: Jerry DuBOISE v. Inez DuBOISE
• Court: Alabama Supreme Court

Page 778

153 So.2d 778

275 Ala. 220

Jerry DuBOISE v. Inez DuBOISE

1 Div. 75.

Supreme Court of Alabama.

May 16, 1963.

Thos. F. Sweeney, Mobile, for appellant.

M. A. Marsal, Mobile, for appellee.

PER CURIAM.

This is an appeal, with prayer in the alternative for mandamus, or other appropriate writ, if appeal does not lie, from an order or decree of the circuit court, in equity, whereby the court, ex mero motu undertook to amend a prior decree which the court had rendered almost two years earlier in a divorce suit.

The husband was respondent in the divorce suit and is now appellant and petitioner in the instant case.

In August, 1958, the wife, in her original bill of complaint, charged cruelty and prayed for divorce dissolving the bonds of matrimony, for custody of a certain child of the parties, for the husband to be required to make periodic payments to the wife for support of the wife and said child, and for such further appropriate relief as she might be entitled to receive.

On October 21, 1958, the husband answered, denying the allegation of cruelty and setting out certain allegations as to his responsibility to support three other children of the parties and as to his income and physical condition.

On August 8, 1958, the wife filed also petition for support pendente lite and solicitor's fee. By order dated January 20, 1959, the court ordered the husband to pay $12.50 per week, pendente lite, pursuant to agreement of the parties.

On each of the dates, June 19, August 21, and September 14, 1959, respectively, the wife filed motion for rule nisi alleging that the husband was in arrears in making said payments. On September 14, 1959, the court ordered that the rule nisi be dismissed.

On January 7, 1960, the wife filed in open court an amendment to the bill as follows:

'Comes now the Complainaaat in the above styled cause and amends her complaint by alleging that the parties to this action own certain property in Mobile County, Alabama, and prays that this Honorable Court order and decree the rights of the parties to the property and set apart to the Complainant the home place and a fair portion of the remaining property.'

On January 7, 1960, the court heard testimony ore tenus and the cause was submitted on the pleadings and testimony so heard.

On January 14, 1960, was rendered the decree which the court later undertook to amend. The paragraphs of the decree are not numbered. We refer to the paragraphs according to the order of their appearance.

The first paragraph dissolved the bonds of matrimony; the second permitted remarriage after the statutory period; and the third awarded custody of children.

The fourth, fifth, and seventh paragraphs recite, respectively, as follows:

(fourth) 'It is also further ordered, adjudged and decree by the Court that the Defendant shall pay to the Complainant the sum of $25.00 per week as alimony and support for herself and the minor child in her custody and that said payments shall be paid to the office of the Accounts Clerk of the Domestic Relations Division of this Court.'

(fifth) 'It is also further ordered, adjudged and decreed by the Court that the property jointly owned by the above parties shall be partitioned and divided equally between the above parties and that after said property has been partitioned the respective parties shall transfer to each other (sic) appropriate deed the right, title and interest in and to said property.'

(seventh) 'The Court retains jurisdiction of this cause for the purpose of making such other or future orders or decrees as to the property settlement and custody and support of the said minor children as to the Court may seem proper, and as changed conditions may require.'

The sixth and eighth paragraphs order the husband to pay solicitor's fee and costs.

The transcript contains a motion filed February 29, 1960, by the husband, to reduce the $25.00 weekly payments, and an order dated August 19, 1960, denying his motion. There are other motions for rule nisi filed by the wife.

On July 28, 1960, the wife filed a paper moving 'the Court to order the property owned jointly by the parties hereto to be sold' (Emphasis Supplied.) and that the proceeds 'be divided equally.'

On August 5, 1960, the court made an order which recites in pertinent part as follows:

'ORDER DIRECTING PARTITION OR SALE OF PROPERTY

'This cause coming on to be heard on a motion for public or private sale as filed by the above Complainant, the above parties being represented by counsel, and it appearing to the Court that the decree of this Court dated January 14, 1960 directed the partitioning of the property of the above parties, and it also further appearing to the Court that said partitioning has not been effected as of this date, and it also further appearing to the Court that said property should either be partitioned without delay or that said property be sold, and upon consideration, it is ORDERED, ADJUDGED and DECREED by the Court that the property owned by the above parties shall forthwith be partitioned and divided equally between the above parties subject to the Complainant having that part of the property with the homeplace on it and that said partitioning shall be effected by the respective parties transferring to each other by appropriate deed the right, title and interest in and to said property.

'It is also further ORDERED, ADJUDGED and DECREED by the Court that in the event either or both of the above parties fail, refuse or neglect to partition said property forthwith then the Register of this Court be, and hereby is, directed to sell said property at private sale or at public sale after due notice has been published as prescribed by law, and that the proceeds therefrom shall be paid into the office of the Register of this Court to be retained therein until disposal shall be made by the Court.' (Emphasis Supplied.)

On December 5, 1960, the court made an order as follows:

'ORDER DIRECTING SALE OF PROPERTY

'It appearing to the Court that an order was heretofore rendered on August 5th, 1960 in the above styled cause ordering that the properties owned by the above parties be partitioned and divided equally between the above parties and other related matters pertaining thereto, and in the event either or both of the parties fail, refuse or neglect to partition said property, then the Register of this Court was ordered and directed to sell such property at private or public sale after due notice has been published as prescribed by law, and that the proceeds therefrom be paid into the office of the Register to be retained by him until further disposed of by the Court, and it further appearing that the Complainant, by and through her solicitor, appeared this day and stated to the Court that the provision of said order dated August 5th, 1960 as to the partition and division of property heretofore mentioned has not been effected and that it will be necessary that the Register be ordered and directed to sell said property at public sale, and, upon consideration by the Court, it is ORDERED ADJUDGED and DECREED by the Court that the Register be, and hereby is, ORDERED and DIRECTED to sell the following properties of the parties hereto at public outcry to the highest bidder for cash and give due notice as prescribed by law, and is hereby by ordered to file his Report of Sale as soon as is practical for him to do so after said sale.' (Emphasis Supplied.)

Then follows a description, by metes and bounds, of real property which probably lies in Mobile County, but the order does not clearly so state. This order of December 5, 1960, is the first time a description of real estate appears in the pleading or record proper.

Next appears a motion filed May 8, 1961, by the wife, to order the register to advertise and sell certain real property, in Mobile County, which is described as in the order of December 5, 1960.

The husband, on May 15, 1961, filed an answer to the motion wherein he sets out the fifth paragraph of the decree rendered January 14, 1960, and further:

'The Defendant saieth that there is no property jointly owned belonging to the parties involved, that the property listed in the Complainant's Motion is property that belongs absolutely to the Defendant herein, Jerry Duboise, and that there was no such orders of Court to the effect that the Defendant's property be sold and divided with the Complainant.'

On June 9, 1961, the cause was submitted for decree on the wife's motion for sale.

Next in the record appears the decree of January 3, 1962, of which the husband now complains. The decree recites as follows:

'ORDER AMENDING DECREE NUNC PRO TUNC AND APPOINTING COMMISSIONER TO SELL PROPERTY FOR DIVISION

'It appearing to the Court that a decree of divorce was granted in the above styled cause on January 14, 1960, and it also further appearing to the Court that the decree inadvertently stated that the property of the above parties was jointly owned and should be partitioned and divided equally between said parties, and it also further appearing to the Court that the property in question belonged to the Defendant and that the said decree of divorce should be amended nunc pro tunc and that a commissioner be appointed to partition or sell said property, and upon consideration, it is ORDERED, ADJUDGED and DECREED by the Court that the decree of divorce heretofore rendered between the above parties on January 14, 1960, as pertains to the property be, and hereby is, amended nunc pro tunc by striking therefrom unnumbered paragraph five as pertains to said property, and substituting the following therefor:

"It is, therefore, ORDERED, ADJUDGED and DECREED by the Court (sic) following property more particularly described as:

'(Description Omitted.)

be, and hereby is, to be sold at public or private sale and the proceeds therefrom shall be paid into the office of the Register of this Court to be disposed of by the Court'.

'It is also further ORDERED,...