Moody v. Moody

• Decision Date: 08 September 1976
• Citation: 339 So.2d 1030
• Parties: Stewart Claude MOODY v. Charla Joyce Johnson MOODY. Civ. 846.
• Court: Alabama Court of Civil Appeals

Page 1030

339 So.2d 1030

Stewart Claude MOODY v. Charla Joyce Johnson MOODY.

Civ. 846.

Court of Civil Appeals of Alabama.

Sept. 8, 1976.

Rehearing Denied Sept. 30, 1976.

Matthis W. Piel, Montgomery, for appellant.

Whitesell & Gordon, Montgomery, for appellee.

HOLMES, Judge.

This is an appeal from an order requiring appellant, Stewart C. Moody (hereinafter Moody), to convey certain property to his wife, Charla Joyce Johnson Moody, appellee herein. This order was issued pursuant to a divorce decree rendered April 1, 1974.

The record reflects the following:

On August 31, 1964, the appellant became the holder of what is best described as a license to use certain land owned by Alabama Power Company, to wit, Lot No. 216 on Martin Lake. Subsequent to acquisition of the recreational site, a cabin was built thereon. Thereafter in April of 1973, Moody declared bankruptcy, and as a fee for representing him in the bankruptcy proceedings, on March 28, 1973, Moody attempted to convey his interest in the cabin to his attorney, The Honorable Matthis W. Piel. ¹ The property was listed in Moody's schedules filed in the bankruptcy proceedings.

The 'recreational site agreement' between Moody and Alabama Power stated:

'13. The Licensee shall not transfer his license nor any interest therein nor sub-let the land herein described nor permit anyone to occupy or use said land or any of the buildings, structures or facilities thereupon without the written consent of the Licensor, and in any and all events each and every one of the terms, conditions and covenants of this license governing the use and occupancy by the Licensee shall apply to invitees, the Licensee being responsible to the Licensor for all the acts of the invitees in the event that such invitees breach any of the covenants, terms, or conditions of this license. The Licensee warrants that at all times the full title to all the buildings and facilities placed upon the licensed premises shall be exclusively held by him, and that he will create no encumbrances upon his title to such buildings and facilities.'

Alabama Power's consent to the transfer from Moody to Piel was never obtained.

In October of 1973, appellant and his wife separated. The wife's attorney on January 11, 1974, drafted a letter of proposed settlement in which it was suggested that the lake cabin be sold and the proceeds used in satisfaction of one of her debts. This letter was sent to Moody's attorney, Piel, and on January 21, 1974, Piel recorded in the Elmore County Probate office the bill of sale which purported to convey the cabin to him. Apparently, there was no response to the letter of proposed settlement.

The wife filed her petition for divorce on January 28, 1974. Appellant Moody having failed to answer the complaint by March 27, 1974, a default judgment was entered against him on that date. On April 1, 1974, a final decree of divorce which awarded the Lake Martin lot and cabin to the wife was rendered.

Thereafter, appellant through his attorney filed a motion for a new trial. This motion was denied on May 9, 1974. Moody then filed a petition to modify the final decree of divorce. Appellant in this petition prayed only for a reduction of alimony and child support payments. He made no mention of setting aside the award of the cabin to his wife, although it was at the hearing on this petition to modify that he first introduced evidence of his transfer of the cabin to Piel. Specifically, Moody in response to a question by his attorney Piel stated that in return for representation at the bankruptcy proceeding: 'I signed my half interest of the lake place over to you.'

On the other hand, appellee at this June 4, 1974, proceeding testified that the appellant had told her that the transfer to Piel was a method of preserving the cabin from the creditors' claims in the bankruptcy proceeding.

The court on September 16, 1974, pursuant to testimony adduced at the June 4 hearing, did reduce the monthly child support payable by appellant but refused to modify the April 1 divorce decree in any other respect.

Approximately one year later, the appellee still had received neither an assignment of the recreational site agreement nor a conveyance of certain other real property awarded by the decree. She then on May 14, 1975, filed a motion requesting that the deputy register be directed both to convey the real property and also to effect an assignment of the license agreement with Alabama Power.

A hearing on this motion was conducted on December 12, 1975, at which time the 'recreational site agreement,' the 'bill of sale' purporting to transfer the cabin to Piel, and certain other instruments and testimony were introduced into evidence. Pursuant to this hearing, the trial court on December 22, 1975, made the following findings of fact:

'6. That the Bill of Sale or document proporting (sic) to convey from Stewart C. Moody to Matthis W. Piel, interest in said lot was never recognized as being valid by the licensor, Alabama Power Company.

'7. The lot and cabin in question, have apparently been used openly and exclusively by the wife and the children in her custody for the past year or so.

'The Court having heard arguments from counsel on the effectiveness of the transfer of interest from the husband to his attorney, M. Piel, the Court finds that the 'Bill of Sale' from Mr. Moody to Mr. Piel not having been recognized by licensor. Alabama Power Company, and being contrary to the license provision of Alabama Power Company . . . is of no effect and cannot be binding on any of the parties or the Alabama Power Company.'

Moody's January 21, 1976, motion for a new trial was denied on March 1, 1976, and he thereafter prosecuted this appeal.

Appellant has been represented at each of the aforementioned proceedings, as he is on this appeal, by Matthis W. Piel. The contentions of appellant upon appeal are threefold: (1) The court erred in allowing evidence to be submitted Only by affidavits at the December 12, 1975, hearing. (2) The decree ordering transfer of the cabin and assignment of the license to Charla Moody was invalid in that a necessary person, i.e., Matthis W. Piel, was not made a party to the litigation. (3) Charla Moody, not being a party to or in privity with the contract between Alabama Power and appellant Moody, cannot sue for its breach; and as she is a stranger to the contract, she cannot take advantage of any breach thereof.

Before proceeding to a discussion of these issues, a preliminary matter to which both parties referred in brief should be addressed. Appellant contends that close scrutiny of the recreational site agreement between Alabama Power and himself manifests an intent of the parties that the cabin remain personal property; and, hence, the instrument set forth in footnote One, Supra, is sufficient in law to transfer his interest to Piel. Appellee, however, argues that perusal of the recreational site agreement warrants finding that the appellant's interest in the cabin is real property. Consequently, the conveyance to Piel is void since the instrument fails to comply with the statutory requirements enumerated in Code of Alabama, Tit. 47, § 22, et seq.

We make no decision with respect to the preceding. For irrespective of whether appellant's interest in the cabin and lot is deemed personalty or realty, his conveyance of that interest without the written consent of Alabama Power violates...