Kirkland v. Kirkland

• Decision Date: 21 April 1938
• Docket Number: 8 Div. 832.
• Citation: 181 So. 96,236 Ala. 120
• Parties: KIRKLAND v. KIRKLAND.
• Court: Alabama Supreme Court

181 So. 96

236 Ala. 120

KIRKLAND v. KIRKLAND.

8 Div. 832.

Supreme Court of Alabama

April 21, 1938

Rehearing Denied May 19, 1938.

Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.

Bill for divorce and to set aside a postnuptial settlement by Emmett Kirkland against Erma Kirkland, and original bill in nature of a cross-bill by respondent against complainant and others, to enforce such settlement. From a decree for complainant, respondent appeals.

Affirmed in part, and in part reversed, rendered, and remanded.

Street & Orr, of Guntersville, for appellant.

P. W Shumate, of Guntersville, for appellee.

BROWN Justice.

This litigation originated by bill filed by the appellee, Emmett Kirkland, against his wife, Erma, ostensibly for divorce, but as subsequent events show, its major purpose was to draw in question, set aside, and annul a postnuptial settlement between the parties, entered into on March 2, 1935, only twelve days before the bill was filed.

The postnuptial agreement of settlement recites, inter alia that:

"Whereas the parties to this agreement are husband and wife and whereas they have found it impossible to live together in peace and harmony and they agree that it is to their mutual benefit and desire to separate:

"And, whereas they desire to settle their property rights and the question as to the custody of their children peaceably and without litgations as follows:"

The terms of the settlement, set out in the agreement in full, was that Kirkland agreed to pay his wife $300, which was paid, and an additional sum of $700 in three annual installments of $233.33 each, "in lieu of all rights of maintenance, support and alimony," in consideration of which the wife "released, remised and quitclaimed unto" the husband "all her right title and demand and interest in or to any and all of the real and personal property now owned by" the husband.

"Said estate hereto referred to as one hundred twenty (120) acres of land in Marshall County, Alabama," described in the agreement; "And also two hundred thirteen (213) acres of land belonging to the party of the first part [Emmett Kirkland] located in Logan County, Arkansas."

It was also stipulated:

"And to secure the prompt and punctual payment of the said above mentioned sum of Seven hundred & 00/100 ($700.00) Dollars as herein above set forth the party of the first part does hereby grant bargain sell and convey unto the party of the second part a lien against the lands herein above described and does also agree to pay the party of the second part a reasonable Solicitors' fee for the enforcement and collection of the sum aforesaid if the party of the first part defaults in the prompt payment of the same as the same falls due.

"Second: And Whereas, the parties to this agreement have four children, namely: Melton Kirkland, age nine years, Alton Kirkland, age seven years, Luther Kirkland, age four years, and Leon Kirkland, age two years, and they do mutually agree that said children shall remain in the custody of the party of the first part until such a time as the party of the second part may provide herself a suitable home when it is here mutually agreed that Melton Kirkland and Leon Kirkland may be committed to the care and custody of the party of the second part and it is mutually agreed that either party to this agreement shall have the right to see the children committed to each others custody under this agreement at their respective homes at reasonable times and hours."

The agreement was executed by the parties and duly acknowledged before a notary, as in case of deed, with separate acknowledgment of the wife, and filed for record and recorded on March 4, 1935, in the office of the judge of probate of Marshall county.

The grounds upon which the original bill as amended seeks relief is stated in the bill as follows: "Complainant further avers that shortly after the signing of the contract and notes referred to above he learned that Respondent was, at the time said contract and notes were signed and for a long time prior thereto, committing acts of adultery with one Tom Hill and that Respondent had kept such acts of adultery hidden from Complainant and at the time he signed said agreement for Respondent to have the custody and control of the two children and also at the time he signed the notes payable to Respondent he was ignorant of the fact that Respondent was guilty of misconduct in acts of adultery with the said Hill."

The defendant, Erma Kirkland, after filing answer to the bill as amended, controverting and specifically denying its material averments, by leave of the court, filed an original bill in the nature of a cross-bill, alleging fraud and collusion between the original complainant, James A. Kirkland, and Gordon Gilbreath, to deprive the defendant of her lien under said postnuptial settlement agreement, through the fraudulent foreclosure of a previously paid mortgage making the said complainant, James A. Kirkland, and Gordon Gilbreath, parties defendant to the cross-bill, praying for the enforcement of said agreement and the lien against the property created thereby, and a sale of the property for the satisfaction of said indebtedness, and a cancellation of said fraudulent foreclosure. The cross-bill was answered setting up the foreclosure for an alleged indebtedness of eleven hundred and some odd dollars, the purchase by Gilbreath at the foreclosure sale, and subsequent reconveyance of the property to James A. Kirkland.

On final hearing, on pleadings and proof taken by depositions, the court entered a final decree dissolving the bonds of matrimony existing between the complainant, Emmett Kirkland, and his wife, Erma; awarded "the permanent custody of the minor children set out by name" in the bill to the original complaint; canceled and held for naught the postnuptial settlement and the notes given to secure the deferred payments thereunder; dismissed the wife's original bill in the nature of a cross-bill, seeking to enforce the postnuptial settlement and the cancellation of the alleged mortgage foreclosure; and, "in lieu of all claims of whatsoever nature and kind said Erma Kirkland may have against Emmett Kirkland or his estate the said Emmett Kirkland is to pay her the sum of one hundred and No/100 Dollars and is to pay the further and other sum of fifty and No/100 Dollars to her solicitor, O. D. Street for solicitor's fees in said cause."

The evidence shows that the said Emmett and Erma were married in Logan county, Ark., in 1924, where Erma lived with her people; she being at the time eighteen years of age, and he thirty years of age. Soon after the marriage, Emmett brought his girl wife to Alabama, settling on Gunters Mountain in Marshall county, among his kin, in a sparsely-settled community, living with or in close proximity to Emmett's parents, where the family consisted of the father, mother and maiden daughter, named "Lovey," Emmett's sister. Emmett purchased a tract of land consisting of 120 acres from his father and built a house of some sort thereon; his home being near the parental residence. The Hills of the neighborhood appear to be intimates of the Kirkland family. Emmett and Erma lived here for eleven years, during which time four children were born to them, all boys, from two to nine years of...