East v. East

• Court: Alabama Court of Civil Appeals
• Writing for the Court: EDWARD N. SCRUGGS
• Citation: 395 So.2d 78
• Parties: Charles Aubrey EAST v. Don Charles EAST. Civ. 2496.
• Decision Date: 17 December 1980

Page 78

395 So.2d 78 Charles Aubrey EAST
v.
Don Charles EAST. Civ. 2496. Court of Civil Appeals of Alabama. Dec. 17, 1980.
Rehearing Denied Jan. 14, 1981.

Tom Radney of Radney & Morris, Alexander City, for appellant.

Calvin M. Whitesell, Montgomery, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

As a third party beneficiary, the plaintiff brought this civil action against his father in the Circuit Court of Clay County for the specific performance of a separation agreement made by the plaintiff's parents to

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convey land to him. Also included in the complaint were contempt proceedings against the father.

For convenience, we have numbered certain paragraphs of the agreement which was attached to and made a part of the complaint, and, for clarity, the following pertinent provisions are quoted therefrom:

KNOW ALL MEN BY THESE PRESENTS:

That the undersigned, Carol Grogan East herein called the wife, and Don Charles East herein called the husband have separated and divorce proceedings are being commenced in the Circuit Court of Escambia County, Alabama, by the said Carol Grogan East against the said Don Charles East, and wherein the parties are the parents of a child, namely, Charles Aubrey East, now about two years of age, and the parties desire to make an agreement between themselves relative to the future custody of the said child.

(1) NOW THEREFORE it is agreed by and between the parties that both parties are suitable persons to be entrusted with the custody of their said child in all respects, but that the parties have agreed between themselves that it is to the best interest of the said child that the Father or husband, Don Charles East be awarded the custody of the said child during the school term and that the said Carol Grogan East shall have the custody of the said child during the three months of summer vacation each year, and each of the parties shall have the custody of the child during alternate Christmas Holidays; the said child to be awarded into the custody of Carol Grogan East the Christmas Holidays of the year 1962.

(2) It is understood and agreed by the parties that the husband shall pay to the wife the sum of $60.00 per month as permanent alimony which said sum shall be payable on the 1st day of each calendar month hereafter.

(3) It is agreed by and between the parties that the wife shall have all of the household goods of the parties, with the provision that the husband may select therefrom any articles which belong peculiarly to him or which he has a necessity for and the wife does not, said selection to be made within one year from this date.

(4) It is further understood and agreed that the parties will convey to the said Charles Aubrey East by a good and sufficient Warranty Deed conveying title in fee simple the 45 acres of land owned by the husband in Clay County, Alabama.

(5) The parties hereby humbly request the Circuit Court of Escambia County, to take cognizance of this agreement and to award the custody of the minor child of the parties in accordance therewith and to award alimony in accordance therewith.

IN WITNESS WHEREOF we have hereunto set our hands and seals in triplicate on this the 1st day of May, 1962.

Further filed with the complaint was a copy of a decree of the Circuit Court of Escambia County dated May 11, 1962, which divorced the plaintiff's parents and largely copied the provisions of paragraphs (1) and (2) of such agreement as to custody of the son and alimony for the wife. None of the provisions of any of the other paragraphs of the separation contract were included, mentioned, or expressly or impliedly incorporated into the divorce decree.

We will not burden this decision with the pleadings seeking to place the father in contempt of court for failure to convey the real estate because the Clay County Circuit Court has no contempt authority to enforce an Escambia County Circuit Court decree. However, of greater importance in this case is the fact that no contempt proceedings can successfully be pursued against a party for failure to perform according to the terms of a separation agreement, which terms are not included in a judgment or decree. There is no violation of any order of the court in such a case since there is an absence of an order as to the subject matter. In the context of this case, a civil contempt consists in the failure

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of a person to do something which he was ordered to do by a court in a civil action for the benefit of the opposing party therein. 4A Ala. Digest, Contempt Key 4. Here, the father was not ordered by the court to convey the property, and he cannot be held in contempt of court for failure to deed the property to his son.

The remaining...