Goza v. Goza
| Citation | 470 So.2d 1262 |
| Parties | Wayne GOZA v. Sarah GOZA. Civ. 4581. |
| Decision Date | 03 April 1985 |
| Court | Alabama Court of Civil Appeals |
Loma B. Beaty, Fort Payne and Terry T. Bush, Rainsville, for appellant.
W.N. Watson of Watson & Watson, Fort Payne, for appellee.
Wayne Goza and Sarah Goza were divorced in the DeKalb County Circuit Court on January 11, 1984. The decree adopted the separation agreement of the parties. When the husband failed to follow the separation agreement and convey certain real property to the wife, the wife filed a petition to show cause and to convey the property. The husband then filed an answer and cross-petition requesting that the separation agreement be set aside, alleging that he lacked the requisite mental capacity to enter into such an agreement at the time of its execution. The trial court treated the husband's cross-petition as an Alabama Rules of Civl Procedure rule 60(b) motion for relief from the final judgment. After an ore tenus hearing the trial court entered an order denying the husband's motion and ordering him to comply with the divorce decree. The husband appeals.
At the outset we again note the cardinal rule that after an ore tenus hearing this court affords the judgment of the trial court a strong presumption of correctness and will reverse the judgment only when a careful examination of the record shows that the evidence is so unsupportive of the judgment as to make it plainly erroneous, palpably incorrect, or manifestly unjust. Stricklin v. Stricklin, 456 So.2d 809 (Ala.Civ.App.1984). The rationale behind the rule is that the trial court has personal contact with the parties before it and is thereby afforded an opportunity for firsthand observation of their demeanor, whereas the reviewing court is bound by the strictures of a written transcript. Barran v. Barran, 431 So.2d 1278 (Ala.Civ.App.1983).
First, the husband contends that the separation agreement should be set aside because he did not have the requisite mental capacity to enter into it at the time of its execution. To set aside a divorce decree, or, as here, part of it, based on lack of capacity, the movant bears the affirmative burden of proving by a preponderance of the evidence that he was non compos mentis at the time of its execution. Ritenour v. Ritenour, 448 So.2d 956 (1984); McLaughlin v. McLaughlin, 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 was non compos mentis was not represented by a guardian ad litem. Box v. Box, 253 Ala. 297, 45 So.2d 157 (1950); Farrell v. Farrell, 243 Ala. 389, 10 So.2d 153 (1942); Nelson v. Nelson, 408 So.2d 101 (Ala.Civ.App.1981), cert. denied, 408 So.2d 104 (Ala.1982). The term "non compos mentis" does not necessarily denote a total destruction of the intellect, but there must be at least such a severe impairment of the mental faculties as to make the movant incapable of protecting himself or of managing his affairs. See Smith v. Smith, 254 Ala. 404, 48 So.2d 546 (1950).
Friends of the husband testified that during the separation and divorce he lost weight, appeared unkempt, lost interest in his business and his hobbies, and he cried in front of them. A psychiatrist employed to examine the husband testified that the husband suffered from a severe emotional disorder during the divorce but that he knew his holdings and what was going on in his business life. During the separation and divorce the husband flew an airplane, engaged in at least some business activity, told friends that he wanted to convey to his wife the property included in the separation agreement because he still loved her and had hopes of reconciliation, and was involved in negotiating the separation agreement to the point of making suggestions to his accountant and attorney that were later incorporated into the final agreement. Thus, the evidence at best shows that the husband was in a state of depression and made a business decision that he later regretted. The proof offered by the husband did not rise to the level of proving that he was non compos mentis as has long been required. McLaughlin, supra.
The husband next contends that the trial court erred on a procedural ground. The original judgment was entered on January 11, 1984; the husband's motion for relief was filed on May 22, 1984, alleging fraud and lack of capacity. The trial court granted the wife's motion to strike that part of the husband's motion based on fraud as untimely filed.
The husband's motion based on fraud was treated by the trial court as a rule 60(b)(3) motion. As such, it should have been made within four months of the entry of the original judgment. Parr v. Parr, 423 So.2d 229 (Ala.Civ.App.1982). The trial court cannot enlarge the time for this motion, though it is vested with broad discretion to act within the time limits. See generally 7 J. Moore & J. Lucas, Moore's Federal Practice p 60.28 (2d ed. 1948).
The husband contends that his motion should relate back under rule 13(c) to the wife's petition to show cause, which was filed within four months of the judgment, and thus be within the four-month limitation of rule 60(b)(3). We disagree. Rule 13(c) allows a counterclaim to "relate back to the time the original plaintiff's claim arose." Rule 13(c), A.R.Civ.P. For rule 13(c) to apply, however, there must be a counterclaim. The motion that the husband wishes to relate back is not a counterclaim; it merely attempts to collaterally attack the original judgment by setting up the affirmative defenses of fraud and that the judgment was void for lack of capacity. The trial court can treat a motion improperly characterized as a counterclaim as an affirmative defense and treat the pleading as though it had been properly designated. Rule 8(c), A.R.Civ.P. Here, the trial court properly treated the husband's motion not as a counterclaim but as an affirmative defense and properly dismissed as to the fraud count.
Thus, the trial court properly granted the wife's motion to strike as to fraud.
Finally, the husband argues that the trial court erred in allowing the husband's former attorney to testify to certain matters arising from their relationship. First, he says that the court erred in allowing the attorney to testify to certain communications made to the wife's attorney regarding certain changes in the divorce agreement requested by the husband. And, second, the...
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