Lundy v. Lundy

• Decision Date: 16 August 1991
• Parties: Cheryl G. LUNDY v. Donald S. LUNDY. 2900169.
• Court: Alabama Court of Civil Appeals

Page 949

586 So.2d 949

Cheryl G. LUNDY v. Donald S. LUNDY.

2900169.

Court of Civil Appeals of Alabama.

Aug. 16, 1991.

Guy Fullan of Fullan & Fullan, Birmingham, for appellant.

Stephen R. Arnold of Durward & Arnold, Birmingham, for appellee.

ROBERTSON, Presiding Judge.

Cheryl S. Lundy (wife) and Donald G. Lundy (husband) were divorced on December 6, 1989. On February 13, 1990, the wife filed a petition for rule nisi, alleging that the husband was failing to abide by certain provisions of the divorce decree. Following the presentation of ore tenus evidence on the wife's petition, the trial court denied all of the wife's requested relief. She appeals.

First, the wife alleges that the husband has failed to deliver to her a policy of life insurance, naming the wife as the irrevocable beneficiary, on the husband's life in the amount of $200,000 as provided in the judgment of divorce.

Next, the wife contends that the husband has failed to pay certain joint debts of the parties. The judgment of divorce, dated December 5, 1989, provided that the husband "shall assume and pay all presently outstanding joint indebtedness of the parties." The wife argues that these debts include the November mortgage payment, a garage door repair bill, and the property tax on the residence, which was awarded to the wife.

Whether a party is in contempt of court or has failed to abide by the provisions of a divorce decree is a determination committed to the sound discretion of a trial court. Hurd v. Hurd, 456 So.2d 316 (Ala.Civ.App.1984). Further, our review in a contempt case is limited to questions of law and does not involve an inquiry into the weight and sufficiency of the evidence, but simply whether the decree is supported by some evidence. Patterson v. Gartman, 439 So.2d 171 (Ala.Civ.App.1983).

First, we will examine whether the husband was in violation of the divorce provision concerning insurance. The husband testified that he had named the wife as the beneficiary of an insurance policy, but that he had not delivered the policy to her because it was a group policy and could not be delivered. Instead, he testified that he sent her evidence of the policy's existence.

The husband also testified that, although the wife was named as beneficiary on his insurance policy, the policy did not expressly state that the beneficiary designation was irrevocable. However, the husband testified that his employer told him that the beneficiary designation was irrevocable. From this evidence the court could have determined that it was an impossibility for the husband to deliver the insurance policy and, further, that the wife had actually been made the irrevocable beneficiary of the husband's policy.

Next, we turn to an examination of whether the husband was in violation of the provision concerning the payment of the parties' joint debts. Prior to the divorce, the parties owned a condominium residence, which had monthly payments in the amount of approximately...