Hamaker v. Hamaker

• Decision Date: 31 December 1975
• Citation: 57 Ala.App. 333,328 So.2d 588
• Parties: Doris Nell HAMAKER v. George M. HAMAKER. Civ. 600.
• Court: Alabama Court of Civil Appeals

Page 588

328 So.2d 588

57 Ala.App. 333

Doris Nell HAMAKER v. George M. HAMAKER.

Civ. 600.

Court of Civil Appeals of Alabama.

Dec. 31, 1975.

Rehearing Denied Feb. 4, 1976.

Lipscomb & Lipscomb, Bessemer, for appellant.

Jackie McDougal, Bessemer, for appellee.

BRADLEY, Judge.

This is an appeal from an order of the trial court rendered on a petition to modify a divorce decree.

The parties to this proceeding were divorced by order of the Circuit Court of Jefferson County, Bessemer Division, on September 29, 1969. Appellant-wife was awarded custody of the two minor children with reasonable visitation rights for appellee-father. The father was ordered to pay $100 per month child support. The parties' personal property and jointly owned real property was disposed of in the following fashion:

'4. That the complainant (wife) is awarded the use and occupancy of the real estate and residence owned by the parties hereto, and the household furniture and effects therein, and now located at Route One, Box 119, Adger, Alabama Until further orders of the court.' (Emphasis added.)

Subsequently the parties filed motions and pleadings in the following sequence: appellee filed a petition to modify on December 15, 1970; appellant filed an answer to that petition. Appellee then requested permission for resubmission, so that additional testimony might be taken; there was an answer to this request. Appellee then filed an amendment to the petition for modification, and appellant moved to strike all of appellee's petitions and motions. Appellant also petitioned for injunctive relief against certain alleged behavior on appellee's part. Appellee next filed another amendment and another motion for resubmission. On November 22, 1972 appellant filed a petition seeking a sale for division of the jointly owned lands, which included the house that had served as the family residence, located on a three and one-half acre parcel at Route 1, Box 119, Adger, Alabama.

A hearing on all of these pleadings was held on November 27, 1972. The evidence at that hearing shows that, at the time of the divorce in 1969, the parties had two minor children, a girl and a boy. That daughter is now nineteen years old, married, and living away from home. The son is now fourteen years of age and has expressed a desire to live with his father. The boy has also told the court that he would like to live in the former family residence because of its size. Since August 2, 1972 the child had been living with his father at his grandmother's house. This latter house is small, having only three rooms. At the time of the modification hearing the father had been laid off from work because of heart trouble. He was drawing $240 a month Social Security and $143 a month from a pension. The fourteen year old son was receiving $120 from Social Security, but this was being paid to appellant, was stated that she used a portion of it to buy the boy clothes and for his lunch money; the remainder was placed in the bank for him. The evidence also showed that at the time of the hearing, appellant had remarried, and that her second husband supported her adequately. At the hearing, appellant stipulated that appellee should have custody of the son.

The final decree, issued on December 14, 1972, awarded custody of the son to appellee, and required appellant to give to appellee all funds that she still held as a result of the boy's Social Security payments. It further ordered that appellant's interest in the jointly owned real estate be divested from her and awarded to appellee upon his payment to her of $1,200. Appellee was awarded the household furniture and fixtures remaining in the house. Appellant filed a motion for rehearing which was denied on November 25, 1974. This appeal is from the decree of modification and the denial of application for rehearing.

Appellant's seventeen assignments of error raise essentially four contentions for reversal: (1) the trial court erred in divesting appellant of her undivided one-half interest in the jointly owned real estate; (2) there was no evidence to support the award of only $1,200 as compensation for appellant's interest in the real estate; (3) the award of all the furniture and fixtures to appellee was error; and (4) the denial of appellant's application for rehearing was erroneous.

We will first consider appellant's contention that the trial court erred in denying the application for rehearing. Appellee replies that, under the old Equity Rules, the trial court's denial of rehearing was not an appealable order. We agree.

The final decree deciding the request for modification of the original divorce proceedings was entered on December 14, 1972; the application for rehearing was filed on January 15, 1973. The trial court conducted a hearing and took the rehearing application under submission on March 2, 1973. The order denying the application was rendered on November 25, 1974, some twenty-one (21) months later. The Rules of Civil Procedure became effective on July 3, 1973.

Under Equity Rule 62, an order denying an application for rehearing in an equity case which did not modify the original decree could not be reviewed on appeal, Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891. This equity rule, along with the other equity rules, was superceded by the Alabama Rules of Civil Procedure. What was formerly an application for rehearing is now considered as a motion for new trial and will be reviewed on appeal, Rule 59, ARCP.

Appellant argues, in essence, that the ruling on the rehearing application is governed by the Alabama Rules of Civil Procedure and cites us to Wilhoite v. Nelson, 294 Ala. 523, 319 So.2d 265.

The supreme Court in the cited case applied the Alabama Rules of Civil Procedure because the original action and the motion for new trial were filed after the effective date of the Rules, July 3, 1973, and were ruled on after that date.

We do not consider Wilhoite to be apt authority in the present proceeding. The original action here was filed in 1969; the application for rehearing was filed on January 15, 1973; the matter was heard and taken under submission on March 2, 1973; all events occurring prior to July 3, 1973, the effective date of the Alabama Rules of Civil Procedure. However, we do consider Premier Industrial Corp. v. Marlow, 292 Ala. 407, 295 So.2d 396, cert. den. 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308, to be decisive authority that the trial court's order denying the rehearing application is not reviewable here. In Premier Industrial an amended complaint and demurrers thereto had been filed ad submitted to the trial court prior to July 3, 1973. A contention was raised that the ruling, which came after July 3, 1973, should be governed by the Alabama Rules of Procedure, which abolished demurrers. The supreme court, pointing out that Rule 86, ARCP provides that the Rules shall '. . . govern all proceedings in actions brought after they take effect . . .,' held that the Alabama Rules of Civil Procedure did not apply. The demurrers had been filed, argued, and submitted to the court prior to the effective date of the Rules. Nothing remained to be done but to rule on the demurrers. The supreme court also noted that no request had been made to have the trial court apply the new Alabama Rules of Civil Procedure.

In the present case the application for rehearing was similarly filed, argued and submitted to the trial court before July 3, 1973; furthermore, there was no request of the trial judge that he apply the Alabama Rules of Civil Procedure. We therefore conclude that the Equity Rule and not the Alabama Rules of Civil Procedure provision governs. The denial of application for rehearing is not reviewable on this appeal.

Next, appellant claims that granting appellee all of the household furniture and fixtures, without compensation to her, was error. It is her argument that the effect of this award is to require her to pay alimony to her former husband, contrary to law. We find no merit in this argument.

To award the husband the Use of property as a home for the child is indeed alimony to the extent that the wife's interest is contributed towards the maintenance and support of the husband, Davis v. Davis, 279 Ala. 643, 189 So.2d 158. However, the Davis case has explicitly been held inapplicable to a permanent division of jointly owned property, Baggett v. Baggett, 47 Ala.App. 539, 258 So.2d 735. The instant award is clearly a property division, not an interlocutory award of support.

The division of property in a divorce case does not have to be an equal one, but only one which is graduated according to the nature of the case, Reid v. Reid, 53 Ala.App. 189, 298 So.2d 611; Hicks v. Hicks,52 Ala.App. 586, 296 So.2d 180. A decree dividing the property of the parties is a matter addressed to the discretion of the trial court, subject only to review for abuse, Allen v. Allen, 49 Ala.App. 200, 269 So.2d 914. The ony question properly before us is whether or not the trial court abused its discretion in awarding the personal property to the husband.

These principles of law must be read in conjunction with the ore tenus rule, which requires us to affirm the trial court unless its findings are plainly and palpably erroneous, Reid v. Reid, supra.

There is very little testimony in the record regarding the furniture and fixtures. There is no evidence that the wife brought any of this personal property into the marriage from her separate estate. Construed most favorably to the wife, the evidence shows that the furniture and fixtures were obtained through the joint efforts of the...