Erbe v. Eady
| Decision Date | 22 February 1984 |
| Citation | 447 So.2d 778 |
| Parties | Yukiko ERBE v. George L. EADY. Civ. 4057. |
| Court | Alabama Court of Civil Appeals |
Larry C. Weaver of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellant.
Ralph E. Slate and Harvey Elrod, Decatur, for appellee.
The wife, Mrs. Erbe, via motion for summary judgment, sought to compel the husband, Mr. Eady, to pay certain funds due under a California divorce decree. The trial court denied the motion and Mrs. Erbe appeals. We reverse and remand with directions.
We note two items at the outset. We make no comment, since it has not been presented as an issue, on the propriety of the means by which Mrs. Erbe sought to compel Mr. Eady to make the payments due under the divorce decree. Secondly, this is, in effect, the second time this same matter has been before this court.
The earlier opinion in this case fully described the history of the proceeding up until the time the first appeal was filed; we need only set out the events which have taken place since the first appeal was decided. See Erbe v. Eady, 406 So.2d 936 (Ala.Civ.App.), cert. denied, 406 So.2d 939 (Ala.1981), cert. denied, 456 U.S. 990, 102 S.Ct. 2270, 73 L.Ed.2d 1285 (1982). We suggest, for a better understanding of what follows, interested parties should refer to Erbe v. Eady.
After this court ruled that Mrs. Erbe was entitled to 41.5 percent of her husband's gross monthly military retirement pay as community property, and that the decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), would not be applied retrospectively, Mrs. Erbe filed a motion in the trial court for summary judgment to compel payment. The trial court denied Mrs. Erbe's motion and entered a judgment in favor of the defendant, briefly stating that "notwithstanding the opinion of the Court of Civil Appeals of Alabama, the plaintiff's petition for relief must be denied in all respects on the ground that she has no legal claim to the relief sought in the petition made the basis of this cause of action."
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...court is not free to revisit those issues which have been finally settled in the appeal to the Supreme Court. See, e.g., Erbe v. Eady, 447 So.2d 778 (Ala.Civ.App.1984) ("When a case is remanded to a trial court after a decision on appeal, `issues decided by the appellate court become law of......
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