Mickle v. Mickle

• Citation: 334 So.2d 900
• Parties: Alma H. MICKLE v. Darrol W. MICKLE. SC 1598.
• Decision Date: 09 July 1976
• Court: Supreme Court of Alabama

Page 900

334 So.2d 900

Alma H. MICKLE v. Darrol W. MICKLE.

SC 1598.

Supreme Court of Alabama.

July 9, 1976.

Louis W. Scholl, Birmingham, for appellant.

Clifford W. Hardy Jr., Bessemer, for appellee.

EMBRY, Justice.

This is an appeal by Alma H. Mickle from an amended judgment confirming sale of real estate for division of proceeds therefrom and directing the manner of payment of those proceeds to the parties. We affirm.

Darrol W. Mickle filed this action against his former wife, Alma, seeking sale, for division of proceeds between them, of two jointly owned parcels of real estate. Almost two years before this action was filed a decree of divorce was entered by the same trial court in which this action was filed. That divorce decree resolved questions of child custody and support, as well as division of personal property, but made no disposition of the jointly owned real property.

On 1 July 1975 after submission on the pleadings, oral testimony and stipulation of the parties a decree was entered which in part provided that the property be:

'* * * sold at private sale on the 15th day of July, 1975, according to law. That from the proceeds from said sale, the clerk is ordered to pay to Darrol W. Mickle, $150.00 as expenses for over seeing repairs done on said property and for collecting the rent. Should either the Plaintiff or the Defendant in this cause bid on said property, then he or she shall only be required to pay one-half of the selling price to the clerk of this Court.'

Pursuant to that decree a private sale was had at which Darrol Mickle bid five thousand dollars ($5,000) for the parcel known as the Wylam property; Alma Mickle bid nine thousand four hundred twenty-five dollars ($9,425) for that parcel known as the Midfield property. Darrol paid, to the Clerk and Register of the court, twenty-five hundred dollars ($2,500); Alma paid forty-seven hundred twelve and 50/100 ($4,712.50). On 4 September 1975 the trial court entered a Final Decree confirming the report of the sale. In part it read:

'The said sale is hereby confirmed and the said J. B. Vines, Register, is hereby authorized, empowered and directed to make, execute and deliver a deed of Parcel #1 to Darrol W. Mickle and Parcel #2 to Alma H. Mickle of all of the right, title and interest of each of the parties to this cause in and to said described real estate situated in Jefferson County, Alabama.

'2. The Clerk is hereby directed to pay ONE HUNDRED FIFTY & NO/100 ($150.00) DOLLARS to Darrol W. Mickle and FOURTEEN HUNDRED FORTY TWO & 50/100 (DOLLARS) to Clifford W. Hardy, Jr., as attorney fee. After the payment of all court costs, then the balance is to be divided equally and a check is to be made out for one-half of the remainder to Darrol W. Mickle and one-half to Alma H. Mickle.'

On 12 November 1975, the trial court on its own initiative entered an Amended Final Decree. It altered the amount of payment to be made to each of the parties. In pertinent part it stated:

'2. The Clerk is directed to pay Two Thousand, Five Hundred & No/100 ($2,500.00) Dollars to Alma M. Mickle, less One Hundred Fifty & No/100 ($150.00) Dollars to Darrol W. Mickle, less Nine Hundred Thirty-seven & 63/100 ($937.63) Dollars attorney fees to be paid Clifford W. Hardy, Jr., less 1/2 of the court costs.

'3. The Clerk is directed to pay Four Thousand, Seven Hundred Twelve & 50/100 ($4,712.50) Dollars to Darrol W. Mickle, less Five Hundred Four & 87/100 ($504.87) Dollars attorney fees to be paid Clifford W. Hardy, Jr., less 1/2 court costs.'

Issue

After expiration of thirty (30) days from 4 September 1975 did the trial court have jurisdiction to amend, alter or vacate the judgment of that date on its own initiative?

The determination of this issue depends upon whether the...