Johns v. Johns

• Decision Date: 03 January 1973
• Citation: Johns v. Johns, 271 So.2d 514, 49 Ala.App. 317 (Ala. Civ. App. 1973)
• Parties: Leonard L. JOHNS v. Faye Harrison JOHNS. Civ. 48.
• Court: Alabama Court of Civil Appeals

Page 514

271 So.2d 514

49 Ala.App. 317

Leonard L. JOHNS v. Faye Harrison JOHNS.

Civ. 48.

Court of Civil Appeals of Alabama.

Jan. 3, 1973.

Robert Burdine, Jr., Florence, for appellant.

Higginbotham & Evans, Florence, for appellee.

WRIGHT, Presiding Judge.

Action for divorce was begun below by Faye Harrison Johns, appellee here, against Leonard L. Johns, appellant here. Grounds of cruelty were charged in the complaint. In addition to prayer for divorce, appellee prayed for custody of two minor children, support and a property settlement in accordance with an agreement entered into by the parties. Answer and waiver was filed by appellant but was subsequently and seasonably withdrawn. At the same time, appellant withdrew his agreement to support and division of property. The complaint of appellee was amended to request that the court determine support and a division of property. Issue to the amended complaint was joined by a general answer.

On February 2, 1972, hearing ore tenus was held and specifically limited by the court to the matter of support. The record indicates that the next proceeding was in open court on April 19, 1972. There is nothing in the record to indicate how this hearing came about. We assume therefore, that it was done by agreement of the parties and the court.

The hearing on April 19, 1972, was again ore tenus. There is a lengthy statement by the court prefacing the taking of testimony. This statement relates to discussion between court and counsel concerning possible settlements of support and property questions. It is clear that efforts of settlement were unsuccessful. The court stated that the purpose of the hearing was to determine the matter of property division since every other issue had either been 'agreed' upon or testimony had been previously taken.

After further effort to settle the matter of property division was fruitless, the court heard, testimony relative to the property of the parties. Upon completion of the hearing, decree was entered dated April 19, 1972.

The decree granted a divorce to appellee, Mrs. Johns, for cruelty. Custody of the two children, both of whom are in college, was awarded to appellee. Support was awarded for the children in the sum of $260 per month so long as they continued in college, but for not more than five years. Some $1650 in other lump sums was awarded appellee. The matter of future alimony was reserved. The title to the only property of the parties, consisting of the home and ten acres of land was divested from appellant and vested in appellee for her natural life, 'with remainder over of the entire interest and title in said property to the two sons. . . .' Possession of the property was given to appellee for her life or until she chose to move therefrom. Appellee was ordered to assume and pay the mortgage indebtedness on the property, maintain it, pay taxes and other expenses and keep it insured. Various other matters were decreed relative to personal property, including giving to appellee all household furnishings, which are not pertinent to this appeal.

Motion for rehearing was filed by appellant and duly overruled by the court.

The argument of appellant in written brief and on oral argument is directed to charges of error in the decree of the trial court.

The first error charged is that the evidence is insufficient to establish the ground of cruelty. We agree with appellant's charge.

It appears from the record that the court held two hearings for the taking of testimony in support of the complaint. The purpose of each hearing was specifically limited by the court. The first was upon the matter of support. The second was upon the issue of a division of property. We have carefully searched the transcript and find only one instance in the testimony of a direct reference to the ground of cruelty charged in the complaint. During the first hearing relative to the issue of support the following occurred.

'Q State to the Court the circumstances surrounding his leaving at that time?

'A Well, he was very brutal. He assaulted me.

'The Court: Let's just stick to the matter of the property please.'

There was no further reference to the instance referred to. It was made clear that the court did not consider such evidence a part of the hearing and no cross examination was made on the point nor opportunity for rebuttal given.

There was a further statement in reference to needed repairs on the house, that appellant had knocked a hole in a wall with his fist and that he had defaced the mantle with a poker, but such occurrences were not related to any acts against...