Filer v. Filer

• Decision Date: 16 January 1987
• Citation: 502 So.2d 698
• Parties: Betty M. FILER v. Alvin V. FILER, Jr. 85-177.
• Court: Alabama Supreme Court

Page 698

502 So.2d 698

Betty M. FILER v. Alvin V. FILER, Jr.

85-177.

Supreme Court of Alabama.

Jan. 16, 1987.

Billy L. Elliott, Birmingham, for appellant.

Douglas L. McWhorter and J. Gary Pate of Najjar, Denaburg, Meyerson, Zarzaur, Max & Boyd, Birmingham, for appellee.

ADAMS, Justice.

This is an appeal by Betty M. Filer of an order of the Jefferson County Circuit Court approving the sale of a residence. By their divorce decree of April 22, 1982, the Filers' residence was to be listed for sale immediately and the proceeds from the sale were to be divided equally. The house remained unsold and Mr. Filer brought this suit in May 1984 to compel the sale of the residence. The court found that Mrs. Filer had intentionally obstructed attempts to sell the house and entered judgment for Mr. Filer. When the house remained unsold, the court granted Mr. Filer's motion for sale. The house was sold at auction and the sale price of $121,000.00 was approved by the court, thus prompting Mrs. Filer's appeal. We affirm.

A chronology of the facts of the case is worth noting. The Filers' divorce judgment specifically provided, in part, the following:

EIGHTH: Betty M. Filer shall have the exclusive use and benefit of the residence located at 2646 O'Neal Circle, Hoover, Alabama, until the sale of said property. Said property shall be placed for sale immediately. The property shall be placed on the market at a sales price of $150,000.00. Alvin V. Filer, Jr. shall pay all taxes and insurance on said property, and necessary repairs for sale, each party shall keep the property free of any claim, lien or encumbrance of their individual creation and indemnify the other against any such. No sale shall be contracted or consummated without the written consent and approval by Betty M. Filer of the sales price and terms of sale which consent and approval shall not be unreasonably withheld. In the event the sale of the residential property involves a delay in payment of a part of the sales price to Alvin V. Filer, Jr., the note and mortgage securing said delayed payment shall be executed in favor of Alvin V. Filer, Jr. and Betty M. Filer. Possession of the residential property shall not be required to be delivered or given up by Betty M. Filer before the 15th day of August, 1982. Alvin V. Filer, Jr. shall be reimbursed the total of expenditures by him made after the date of the judgment in this case for taxes, insurance and maintenance at the time the sale is closed. Such expenditures are to be reimbursed prior to a determination of the sum due Betty M. Filer.

Within three months of the divorce, Mr. Filer petitioned the court for a rule nisi, after Mrs. Filer had refused to accept an offer to buy the house, and also asked the court to modify the decree to reduce his alimony and child support obligations. The court found, on September 8, 1982, that Mrs. Filer was not in contempt of court as to her rejection of the offer to buy the house, but granted Mr. Filer's request to reduce alimony and child support payments.

In November 1983, in response to Mrs. Filer's petition to modify the divorce decree to increase alimony and child support, Mr. Filer answered and cross-petitioned, alleging that Mrs. Filer was frustrating attempts to sell the house. This litigation culminated in the court's ordering that alimony and child support be temporarily increased to compensate for Mrs. Filer's loss of her job and ordering that Mrs. Filer thoroughly clean the house and, if necessary, permit replacement of the kitchen flooring. It then dismissed Mr. Filer's cross-petition without prejudice on February 24, 1984.

By May 1984, the house was still unsold, and Mr. Filer brought the present suit. Testimony revealed that six realtors had contracted to sell the house from May 1982 until this suit was filed; a seventh realtor declined to accept the listing. Based upon Mrs. Filer's testimony, the court found that her desire not to sell the house was manifested by her intentional discouragement of its sale. Testimony revealed that the house was not kept clean or made presentable at times when prospective buyers were shown the property. In its April 12, 1985, judgment, the court found that "various realtors have made suggestions as to steps which could be taken in order to make the property more presentable or salable." Mr. Filer, the court ordered, should be allowed

to perform any of the repairs or maintenance set out in the Court's finding and shall be reimbursed for all expenses incurred therewith from the sales price of the property when it is sold before a division of the proceeds of the sale between the parties.

When the house remained unsold by the date designated as the deadline for its sale, the court, on July 2, 1985, granted Mr. Filer's motion for sale. Mrs. Filer's attorney was allowed to withdraw from the case after advising the court that he was unable "to communicate properly with the Defendant [Mrs. Filer]." After proper notice of sale had been given, the house was sold at auction for $121,000.00. Mrs. Filer's new attorney filed exceptions and objections to the register's report of sale, which were denied, and the sale price was approved November 13, 1985. The appellant's present counsel is the third attorney to represent her in this action.

Mrs. Filer views the April 12, 1985 judgment as a collateral attack on the 1982 divorce decree. She maintains that this suit, which resulted in the order to sell the house and its sale at auction, is an improper interpretation, modification and attack on a non-modifiable property division incorporated in the divorce judgment. If the purpose of the second suit was the enforcement of the divorce judgment regarding the sale of the house, Mrs. Filer argues, the court orders of September 8, 1982, and February 24, 1984, are res judicata on the issue, and, therefore, this suit is barred. She also contends that the court ordered the house sold without setting the respective interests of the parties and that the court failed to set out the complete terms and conditions for the sale.

Both parties to this suit concede that the court had jurisdiction to hear the case. Mrs. Filer contends on appeal, however, that a second suit was not the proper vehicle for seeking enforcement of the provision of the divorce decree pertaining to the sale of the residence. Although a motion to enforce the divorce decree might have been preferable to a second suit, this error is more cosmetic than substantive. The Circuit Court of Jefferson County had jurisdiction in this case, whether the form of the action was a motion to enforce the divorce judgment or a separate suit. Mrs. Filer was not prejudiced simply because Mr. Filer chose to file a separate suit. Regardless of form, the relief which Mr. Filer sought under either procedure was to get the parties' property sold.

Mrs. Filer argues that the April 12, 1985 judgment, the subsequent order for sale by auction, and the court's approval of the sale constitute a modification of the non-modifiable property division included in the divorce decree. This argument disregards the clear weight of authority in Alabama. See Haney v. Haney, 50 Ala.App. 79, 277 So.2d 356 (1973); Mayhan v. Mayhan, 395 So.2d 1022 (Ala.Civ.App.1981); and Boyd v. Boyd, 447 So.2d 790 (Ala.Civ.App.1984).

In Mayhan, supra, the husband was awarded use of the house, but if the house should be sold, proceeds from the sale were to be divided equally. The wife...