Holman v. Holman

Decision Date25 May 1983
Citation435 So.2d 98
PartiesGrace HOLMAN v. Charles HOLMAN. Civ. 3591.
CourtAlabama Court of Civil Appeals

John P. Carlton of Carlton, Vann & Stitchweh, Birmingham, for appellant.

Charles N. McKnight of Bryant & McKnight, Mobile, for appellee.


This is an appeal from the modification of a divorce decree.

On November 21, 1974 Grace Holman was divorced from Charles Holman by decree of the Jefferson County Circuit Court. Three of the parties' four children are currently living with the wife. Under the provisions of the divorce decree, the husband was ordered to pay $125 per month for the support and maintenance of each of the minor children and $200 per month as periodic alimony to the wife. The decree also provided:

"That the use and occupancy of the residential dwelling house, owned by the parties, at 2900 Wisteria Lane, Hoover, Jefferson County, Alabama, is hereby awarded to the plaintiff and she shall have the right to remain in occupancy of the said residential dwelling house and the real property on which same is situated and live in the home until such time as the youngest of the said minor children reaches the age of twenty-one years, or the plaintiff remarries or, the plaintiff decides not to live in the home, whichever event occurs first; and on the occurence of any one or more of said events, the residential dwelling house of the parties and the real property on which same is situated, shall be sold and the net proceeds derived therefrom, shall be divided equally between the plaintiff and defendant. That the plaintiff, Grace Holman, shall pay, so long as she is in possession and occupancy of said real property, the monthly mortgage payments, ad valorem taxes, hazard insurance and the cost and expense of keeping the said residential dwelling house in a good state of repair. In the event of the death of the plaintiff or defendant before such time as the house is sold, the survivorship interest shall not be disturbed, and the survivor of the parties shall take full and complete title to the said real property to the same extent as if this provision of the Final Judgment of Divorce did not appear herein."

A petition for modification of the divorce decree was filed by the wife in December 1981. In her petition the wife stated that due to the effects of inflation she needed an increase in her husband's child support payments. She also alleged that one of the children was suffering from a certain physical condition that made the above quoted divorce decree provision inappropriate. The wife claimed the child's well-being required that they move. She asked the court to vest in her fee simple title to the house so that she could sell it and use all the proceeds to purchase another home. She stated that the court's prior disposition of the house was not an unmodifiable property settlement but was instead related to the support and maintenance of the minor children and is thus subject to modification.

After a hearing on the petition, the court increased the child support by $175 per month. The wife's request for title to the house was denied. The wife filed a motion for new trial in which she alleged that the increase in child support was inadequate. She also claimed that the trial court erred in failing to award her full title in the marital home. She requested, among other things, that the court make an entry of findings of fact and conclusions of law. The husband, in a motion to reconsider asked the court to lower his child support payments. He alleged that the wife failed to prove any material change in circumstances.

The court denied the wife's motion for new trial and the husband's motion to reconsider but did set out its findings. The court concluded that the marital home disposition "provision of the divorce decree is a property settlement which cannot be modified. See Monroe v. Monroe, 356 So.2d 196 [Ala.Civ.App.1978] for a case that is factually very close to the case at bar."

The wife appeals and argues the trial court erred by concluding that the marital home disposition provision was an unmodifiable property settlement. She asserts our supreme court recognized that a conflict exists between Monroe, the decision relied on by the trial court, and other recent cases of this court.

The trial court in Monroe, gave to the wife the use and occupancy of the marital home. She was required to make the monthly mortgage payments and the husband was ordered to pay all reasonable and necessary maintenance and repairs. The property was to be sold and the net proceeds divided between the parties when the wife remarried or at such time as the children no longer lived with their mother. We held that this provision was a property settlement and could not be modified.

In McGugin v. McGugin, 357 So.2d 347 (Ala.Civ.App.1978), the wife was given possession of the marital home but, as in Monroe, the property remained in the joint ownership of the parties. The husband was to pay the monthly mortgage installments. Upon wife's remarriage the property was to be sold and the net balance divided between the parties. This court held that:

"[T]he original divorce decree ordering the husband to pay the mortgage installments on the couple's former residence did not constitute a property settlement. The divorce decree indicates that the parties were to sell the property and divide the proceeds between them. The wife and child were given the right to remain in possession of the home until the wife remarried and the husband was ordered to pay the monthly mortgage installments on the house until the balance of the mortgage no longer existed. But if the wife did subsequently remarry, both husband and wife would contribute to the satisfaction of the mortgage indebtedness. As a consequence of the contingency of the wife's remarriage it is impossible to ascertain if the husband would ultimately pay the entire mortgage indebtedness or only a portion thereof. Had the court in its original judgment of divorce intended that the mortgage payments be used as a device to complete an equitable distribution of the property between the parties, it is difficult to imagine why that obligation would have been dependent upon a contingency that might or might not occur in the future thus subjecting the value or total of the husband's obligation to uncertainty in terms of dollars and cents.

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9 cases
  • Porter v. Porter
    • United States
    • Alabama Court of Civil Appeals
    • June 19, 1985
    ...of the trial court, and its judgment in that regard will not be reversed unless an abuse of that discretion is shown. Holman v. Holman, 435 So.2d 98 (Ala.Civ.App.1983); Jenkins v. Jenkins, 406 So.2d 976 (Ala.Civ.App.1981). Moreover, on appeal of a divorce case which has been presented to th......
  • Lambert v. Lambert
    • United States
    • Alabama Court of Civil Appeals
    • December 31, 2008
    ...alimony payments ..., and as such were modifiable upon a showing of changed circumstances." 357 So.2d at 351-52. In Holman v. Holman, 435 So.2d 98, 100-01 (Ala.Civ.App.1983), this court explained that when a husband is ordered to pay the mortgage payments on the parties' jointly owned marit......
  • Freeman v. Freeman
    • United States
    • Alabama Court of Civil Appeals
    • November 10, 2011
    ...needs of the child for the continuation of that lifestyle after divorce." Dyas, 683 So.2d at 973–74 n. 2.In Holman v. Holman, 435 So.2d 98, 101–02 (Ala.Civ.App.1983), this court held that a trial court had not exceeded its discretion in increasing child support by only $175 per month even t......
  • Mullins v. Mullins
    • United States
    • Alabama Court of Civil Appeals
    • August 14, 1985
    ...not be reversed on appeal unless it so clearly appears arbitrary and unjust as to amount to an abuse of discretion, Holman v. Holman, 435 So.2d 98 (Ala.Civ.App.1983); Fuller v. Fuller, 368 So.2d 30 (Ala.Civ.App.1979). It is further to be considered that the judgment of a trial court entered......
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