Kelley v. Kelley

• Decision Date: 06 November 1974
• Citation: 303 So.2d 108,53 Ala.App. 608
• Parties: , 16 UCC Rep.Serv. 175 Mandy Faye Baughn KELLEY v. William Jackson KELLEY. Civ. 298.
• Court: Alabama Court of Civil Appeals

Page 108

303 So.2d 108

53 Ala.App. 608, 16 UCC Rep.Serv. 175

Mandy Faye Baughn KELLEY v. William Jackson KELLEY.

Civ. 298.

Court of Civil Appeals of Alabama.

Nov. 6, 1974.

Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellant.

H. Evins Hamm, Huntsville, for appellee.

HOLMES, Judge.

This is an appeal by appellant from a decree of the Madison County Circuit Court denying appellant's petition to set aside an appraisal of real estate, conducted pursuant to a divorce decree. Appellant's petition further requested the trial court itself to determine the fair market value of the real estate.

The parties were divorced on March 30, 1972. The divorce decree contained the following provision:

'That the Complainant and Respondent are to have the 300 acres in Marion County appraised for its present fair market value by a qualified land appraiser acceptable to both the Complainant and the Respondent.'

The decree, as part of the division of property, thereafter provided for the appellee to pay to appellant one-half of the appraised value of their own 300 acres, less certain deductions.

On April 4, 1972, the parties agreed on an appraiser, Mr. T. A. Carnes of Winfield, Alabama. Mr. Carnes, a resident of the county in which the land is located, investigated the land and, on April 12, 1972, mailed his written appraisal of $14,000 to both appellant and appellee. Appellee, on August 1, 1972, mailed a check in the amount of $4,470 to appellant which represented one-half of the appraised value less certain deductions as authorized by the divorce decree.

On November 1, 1972, appellant filed her petition alleging that the appraisal did not represent the fair market value of the property and that the appraisal was so grossly inadequate as to amount to fraud. Following the sustaining of appellee's demurrer to the petition, appellant filed an amendment to the petition on December 22, 1972. In this amendment she further alleged that the check was an unacceptable form of payment.

On May 16, 1973, thirteen months after the appraisal by the jointly agreed upon appraiser, appellant's privately hired appraiser appraised the value of the land at $35,234.05.

After a hearing Ore tenus relief was denied appellant. It is from this action of the trial court that this appeal is taken.

The learned trial court's decree is detailed as to the court's findings and the applicable law relied upon.

The trial court held that after a lapse of thirty days from the entering of the divorce decree, the property settlement could not be modified or changed except as to orders necessary to give effect to the court's decision. The court found that the orders effecting the property settlement had already been carried out by the parties. The court held that the evidence showed that deeds had been conveyed, an appraiser agreed upon, and an appraisal from the same obtained. Therefore, the court held no further orders were necessary to give effect to the provisions of the property settlement. Thus, for the court to determine the market value would, according to the learned trial judge, constitute a modification of the property settlement contained in the divorce decree and, as such, is prohibited by the existing Alabama law.

Additionally, the court held that even if it could determine the market value, it could do so only if it found that the inadequacy of the appraisal by Mr. Carnes 'was so glaring and gross as to at once shock the understanding and conscience of an honest and just man, or at least sufficient to raise a presumption of fraud.' The court found that the majority of the evidence did not suggest that the appraisal was inadequate. Nor was there evidence presented to indicate fraud.

The trial court further found that the payment by check was acceptable and that appellee had therefore paid all that was due appellant.

Counsel for appellant has presented twenty-six assignments of error to this court. The argues assignments of error fall into three main areas of contention. The first argument presented by appellant in brief is that the court erred to reversal when it found that the petition by appellant was an attempt to modify, rather than to enforce the judgment. The second ground is that the decree is clearly contrary to the great weight of the evidence in finding that the appraisal by Mr. Carnes was not inadequate. The third argument presented to this court by appellant is that the court erred in its finding that payment by check, in lieu of cash, fulfilled the requirements of the divorce decree.

Appellant's first contention is that her petition was a petition to enforce the original divorce decree and not to modify it as the court held. A provision for a property settlement is not a continuous provision and after a lapse of thirty days from the date of rendition of the decree, a court of equity cannot modify a property settlement except to correct clerical errors. Duboise v. Duboise, 275 Ala. 220, 153 So.2d 778.

To this court, the trial judge did not err in finding that appellant's petition was an attempt to modify. Appellant's argument appears to be that the court must now enforce the decree since obstacles have arisen since the rendition of the decree which makes compliance therewith impossible. The alleged obstacle is that the decree cannot be strictly adhered to because the parties cannot now agree to have another appraisal or agree even on another appraiser because of the respective positions of the parties as a result of the divorce.

This court is not persuaded by the argument of appellant's able counsel. As we perceive the requirements of the decree and read the pleadings, there is nothing left under the decree to be enforced and, therefore, appellant's petition is indeed an effort to modify. The original decree provided that the land in question would be appraised by a 'qualified' land appraiser Acceptable to both, and that appellee would then pay appellant one-half of the appraised value, less certain deductions. The evidence shows that an appraiser was agreed upon with requisite qualifications, an appraisal, made, deeds exchanged and the check mailed to appellant.

As we read appellant's petition, appellant is asking the trial court to determine the present fair market value in lieu of accepting the appraisal of the previously agreed upon appraiser. To this court, this attempt to substitute appraisers or procedure as set out in the original decree is an attempted modification, and the trial court held so properly.

As an alternative ground for denying relief, the learned trial judge held that even if it were to determine the fair market value of the property, it could do so only if it first set aside the appraisal of Mr. Carnes. To set the appraisal aside, the trial court held it would first have to find that the appraisal was 'so glaring and gross as to at once shock the understanding and conscience of an honest and just man, or at least sufficient to raise a presumption of fraud.' Dunn v. Ponceler, 235 Ala. 269, 178 So. 40.

Appellant agrees...