Oliver v. Oliver
| Decision Date | 26 January 1983 |
| Citation | 431 So.2d 1271 |
| Parties | Dorothy L. OLIVER v. James C. OLIVER. Civ. 3253. |
| Court | Alabama Court of Civil Appeals |
Johnnie B. Byrd, Jr. of Caffey & Byrd, Brewton, for appellant.
Broox G. Garrett, Jr. of Garretts, Thompson & Hines, Brewton, for appellee.
Plaintiff (wife) and defendant (husband) were divorced in 1975. The decree of divorce incorporated an agreement of the parties. In 1981 husband sought termination of the requirements of the decree as to periodic alimony under § 30-2-55, Code of Alabama 1975, because of the remarriage of the wife.
The wife answered, claiming past-due alimony accrued under the divorce decree and claiming a vesting of alimony in gross. She also contends that § 30-2-55 is violative of due process, equal rights and right of contract provisions of the Constitutions of the United States and State of Alabama.
The pertinent provisions of the divorce decree are as follows:
The court heard evidence ore tenus and made findings that the paragraph as to alimony was reduced by mutual agreement of the parties, and the wife waived any objection to the reduction as of July 1978. Thereby payments were reduced to $700.00 per month. The paragraph relating to life insurance constituted an award of alimony in gross but applied only to what the evidence termed a base policy in the approximate amount of $47,000.00 and did not apply to a supplemental policy purchased by the husband. It further found that the paragraph titled "RETIREMENT INCOME," provided for periodic income and was therefore terminated by the remarriage of the wife as provided in § 30-2-55. The court then ordered paragraphs "ALIMONY" and "RETIREMENT INCOME" of the divorce decree to be no longer effective as of October 2, 1981, the date of the remarriage of the wife; that the provisions of the decree relating to life insurance included only the "base policy" but that constituted alimony in gross. It was ordered that the sum of $700.00 due as alimony for the month of September 1981 be paid to the wife. The wife appealed to this court.
The appeal first contended that the court erred in finding that the provisions for periodic alimony were modified by agreement of the parties in July 1978. There was evidence that the husband fully complied with the "alimony" provisions of the decree until about July 1978. There were increases because of his increased salary until he was paying up to $900.00 per month. In July 1978 he became eligible for retirement with his company. In view of the large payment he was then making to the wife, he called her and told her he could now retire and was considering doing so unless she agreed to accept a reduction of alimony down to $700.00 per month. Husband stated wife agreed to the reduction. He thereafter paid her $700.00 from July 1978 until he learned of her remarriage in September 1981. The wife accepted his checks without complaint until husband brought this action.
The wife acknowledges all of these events except that of the claim of her agreement to a reduction. She said she neither agreed nor disagreed, only accepted. Thus a factual conflict was presented by the evidence as to whether there was an agreement to waive her known rights. There was evidence before the court that the wife thought that husband was going to retire. Though the amount of his retirement income was unknown, it was evident that it would be greatly less than he was earning in salary. There was apparently little if any animosity between the parties subsequent to the divorce. Each had visited the other and with their children. The wife openly enjoyed intimate relationships with at least two men (one of whom she has now married) in the presence of her children and her former husband. The husband had remarried. There appeared to be no issue made of the reduced alimony subsequent to the alleged agreement.
With this and other evidence before it, the court concluded a mutual agreement was reached by the parties to reduce the alimony payments.
The use by the trial court of terminology that the parties by agreement "modified" the original decree of alimony by reducing alimony to $700.00 per month is perhaps confusing and unfortunate. At first impression it may be thought that that finding is contrary to the decision of the Alabama Supreme Court in the case of Holland v. Holland, 406 So.2d 877 (Ala.1981) and the yet unpublished decision in the case of Ex parte Eugene Smith, Jr., 429 So.2d 1050 (Ala.1983). The court held in those cases that a final judgment may not be modified or amended by a subsequent agreement between the parties. Of course that holding is the law. Only the court may modify or amend its final judgment. However, we do not understand that holding to mean that the parties by agreement may not waive or release, in part or in entirety, their rights to the benefits granted by such judgment. Such waiver, satisfaction, credit or release of judgment by subsequent contract is common at law or in equity. Any right held by a party, whether by judgment or otherwise, may be the subject of contract to alter, exchange, waive, sell or satisfy. 15A C.J.S. Compromise and Settlement § 23; Winegardner v. Burns, 361 So.2d 1054 (Ala.1978); Watson v. McGee, 348 So.2d 461 (Ala.1977). Whether there was such a contract with consideration was an issue of fact in this case. The finding of the court that by agreement the wife waived or compromised her right to the full amount of alimony and accepted the lesser amount of $700.00 per month is supported by evidence presented. Though referring to the divorce decree as being modified by agreement, the trial court also found that the wife waived the full amount by agreement. The finding of waiver by agreement viewed with a presumption of correctness is affirmed. McGaha v. Steadman, 410 So.2d 420 (Ala.Civ.App.1981).
The second issue is whether there was error in holding that the life insurance provision of the decree applied only to one policy. 1
In responding to the contention of the wife on this issue, we note that the judge whose interpretation of the life insurance provision is now before us, was the judge who accepted the parties' agreement and placed it in the divorce decree. Because of that fact, though it is not conclusive, and because of some ambiguity in the phrase "provided by and through," when considered in the light of the evidence presented, we are again constrained to accept the trial court's judgment. The evidence was that the husband, at the time of the divorce, had in effect on his life two straight life insurance policies. The "base policy" was provided by his employer. The employer paid the premiums. There was a "supplemental" policy for the same benefit amount, presumably with the same insurer, for which the employer did not pay the premiums. The evidence did not disclose how the second policy was obtained. It might have been concluded that it was available or offered to the husband because of his employment. However, it could be said that it was not "provided by or through" his employer when he paid the premiums. Evidence of the true intent of ambiguous words in a contract is admissible. Mitchell v. Mitchell, 348 So.2d 1071 (Ala.Civ.App.1977).
The third issue is whether the provision in the divorce decree giving to the wife one-third of the husband's net retirement pay was an award of periodic alimony, an award of alimony in gross or a property settlement.
The trial court held the award to be periodic alimony, terminable by remarriage under § 30-2-55, Code of Alabama 1975. The wife contends that because the husband stated he had a vested interest in the retirement at the time of the divorce, it was an asset and subject to division. The husband contends that only a right to some retirement benefits was vested if he continued in his employment for the time required for retirement. He did not know what his benefits would be at that time. He further testified that the purpose of the provision was to provide for support and maintenance of the wife subsequent to his retirement when the specific periodic alimony would end.
In all cases of construction of a divorce decree for the purpose of determining whether an award is periodic alimony or alimony in gross, and it is not specifically stated, the court will look to the source of payment and the purpose. Borton v. Borton, 230 Ala. 630, 162 So. 529 (1935). The late Justice Bloodworth examined the legal and factual...
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