Horsley v. Horsley

• Decision Date: 17 September 1980
• Citation: 390 So.2d 1058
• Parties: Susan Mango HORSLEY v. Joe Norris HORSLEY. Civ. 2222.
• Court: Alabama Court of Civil Appeals

Page 1058

390 So.2d 1058

Susan Mango HORSLEY v. Joe Norris HORSLEY.

Civ. 2222.

Court of Civil Appeals of Alabama.

Sept. 17, 1980.

Rehearing Denied Nov. 5, 1980.

Thomas B. Hanes, of Hanes, Hanes & Bolin, Birmingham, for appellant.

E. Ray Large, of Large & Donovan, Birmingham, for appellee.

BRADLEY, Judge.

The appeal is from an order of the circuit court construing a provision in a prior divorce decree plus ascertaining the arrearage in child support payments.

The parties to this proceeding were divorced in August 1977. The parties had one child, three years old, custody of whom was awarded to the father.

An agreement was entered into by the parties and made a part of the divorce decree. The portion of the agreement that is in dispute is paragraph 2 thereof, which is as follows:

2. Plaintiff, SUSAN MANGO HORSLEY, agrees to contribute up to ONE THOUSAND TWO HUNDRED DOLLARS ($1,200.00) per year to the minor child's expenses in attending any kindergarten, day care center, parochial or private schools until the child reaches the age of nineteen (19) years. In the event said child should attend college then said payment shall continue until the child reaches an undergraduate degree. It is further agreed that in the event said child shall attend a public school and not incur any school expenses, then the Plaintiff shall deposit the sum of ONE HUNDRED DOLLARS ($100.00) per month in the existing trust fund savings account at City Federal Savings & Loan Association with the said child as beneficiary and LOUIS MANGO, SR. as guardian. Said payments are not to be construed as child support.

On August 31, 1979 the father filed a rule nisi petition seeking to have the mother held in contempt for failure to comply with the terms of paragraph 2 of the agreement. After a hearing the trial court construed paragraph 2 to require the mother to pay child support to the father and ascertained the arrearage. She appeals; we affirm.

An agreement between the parties to a divorce action with respect to child support when adopted by the court and made a part of the final decree is merged into the decree, and such decree is as effective as any other decree with the same terms whether there was an agreement to that effect. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969).

The agreement was made a part of the court's divorce decree and such decree is to be enforced as other court decrees with the same terms are enforced. Wise v. Watson, 286 Ala. 22, 236 So.2d 681 (1970).

The trial court construed paragraph 2 of the agreement to require the wife to pay child support to the husband/father and also determined the amount of child support that the wife was in arrears. The wife contends here that the trial court erroneously construed paragraph 2 to require her to pay child support to the father and that the amount of the arrearage found to be due is unsupported by the evidence.

Judgments and decrees are to be construed like other written instruments, and, if there is any uncertainty, the court must construe them so as to express the intent of the parties. Price v. Price, Ala.Civ.App., 360 So.2d 340 (1978); Reeder v. Reeder, Ala.Civ.App., 356 So.2d 202 (1978). Such intent can be derived from the provisions of the agreement. Reeder v. Reeder, supra.

Also, where a judgment or decree is so obscure that it fails to express the exact determination of the court, reference may be had to the pleadings, other proceedings to which it refers, and the entire record, to ascertain its true meaning. Brown v. Brown, 276 Ala. 153, 159...