Moore v. Graham

• Decision Date: 13 September 1991
• Citation: 590 So.2d 293
• Parties: Damita Frazier MOORE v. Larry James GRAHAM. Civ. 7749.
• Court: Alabama Court of Civil Appeals

Page 293

590 So.2d 293

Damita Frazier MOORE v. Larry James GRAHAM.

Civ. 7749.

Court of Civil Appeals of Alabama.

Sept. 13, 1991.

Rehearing Denied Oct. 18, 1991.

Stephen T. Etheredge of Johnson, Etheredge & Dowling, Dothan, for appellant.

Cheryle D. Motley of Motley & Motley, Dothan, for appellee.

RUSSELL, Judge.

The parties were divorced in February 1989. In February 1990 the husband filed a petition for rule nisi against the wife for her alleged noncompliance with terms of the divorce judgment relating to the disposition of the former marital residence. The wife answered with a denial and further sought judicial clarification of her obligations under the judgment.

Following an ore tenus proceeding, the trial court entered an order dated April 10, 1990, finding that the wife was not in contempt of court. The court however ordered the wife to pay the husband the sum of $5,016.78 in satisfaction of her obligations under the divorce judgment and required her to assume the balance of the second mortgage on the marital residence. On May 8, 1990, the wife filed a pleading captioned "Motion for Relief from Judgment," alleging that the trial judge, who was not the judge who granted the divorce, had misinterpreted the divorce judgment. The trial court denied this motion, and the wife appeals. We reverse and remand with instructions.

Although the wife's post-trial motion asked for relief from judgment pursuant to Rule 60(b)(1), Alabama Rules of Civil Procedure, the motion set out different and general grounds for relief, none of which established a ground justifying relief under Rule 60(b)(1). We find the motion to be, in both form and substance, a Rule 59 motion for new trial or to alter or amend the trial court's judgment. See Cornelius v. Green, 477 So.2d 1363 (Ala.1985); Simmons v. Simmons, 390 So.2d 622 (Ala.Civ.App.1980). As the wife's motion was filed within 30 days of the April 10, 1990, judgment, and notice of appeal was filed within 42 days of denial of the motion, we shall treat this matter as a timely appeal from the denial of a Rule 59 motion. Rule 59, A.R.Civ.P.; Rule 4(a)(1), Alabama Rules of Appellate Procedure.

The relevant provisions of the February 1989 divorce judgment are as follows:

"(5) Plaintiff [wife] is awarded title and possession of the home of the parties located at 2106 Granada Drive in Dothan, Alabama and she is ordered to assume and be responsible for the 1st mortgage indebtedness thereon. Upon the sale, exchange, or remarriage of Plaintiff, Defendant [husband] shall be entitled to 1/2 of the 1989 value of the home agreed by the parties to be $70,000.00 minus the mortgage balance as of this date.

"....

"(7) Defendant shall pay all of the marital indebtedness including the second mortgage on the home, and shall hold Plaintiff harmless therefor."

The record reveals that the wife remarried in December 1989 and that in February 1990 the husband filed his petition for rule nisi, alleging that the wife had failed to pay monies due to him under the judgment and seeking to enforce the provisions set forth in paragraph 5.

In its April 1990 order, the trial court interpreted the divorce judgment as providing for the deduction from the 1989 value of the marital residence of both the first and second mortgage balances and a division of the remaining equity between the parties. The order provides, in pertinent part, as follows:

"Within 30 days of this order, the Plaintiff [wife] will pay the Defendant [husband] an amount computed as follows in satisfaction of [the wife's] obligations under Paragraphs 5 and 7 of the divorce decree:

                Agreed value in 1989                     $70,000.00
                Less
                1st Mortgage balance         $48,143.76
                2nd Mortgage balance          10,684.68
                                             ----------   58,828.44
                                                         ----------
                Equity                                    11,171.56
                Defendant's share ( 1/2)                   5,585.78
                Less
                Unpaid attorney's fees          $300.00
                Unpaid 2nd Mortgage payment      172.00
                Unpaid Court Costs                97.00
                                             ----------
                Net due Defendant                            569.00
                                                         ----------
                                                          $5,016.78  "
                                                         ----------
                

The wife argues that in addition to requiring her to pay the husband $5,016.78 as his interest in the marital residence, the trial court's order erroneously construes the divorce judgment to require her to assume the second mortgage indebtedness of $10,684.68. She contends that a proper construction of paragraphs 5 and 7 of the divorce judgment would require her to pay the husband one-half of the equity resulting from the deduction of the first mortgage balance from the agreed-upon value of $70,000 and would further require the husband to assume the second mortgage balance on the marital residence.

Judgments are to be construed like other written instruments. The rules applicable to the construction and...