Patterson v. Patterson

• Decision Date: 14 October 1987
• Citation: 518 So.2d 739
• Parties: Linda Kay PATTERSON v. George Michael PATTERSON. Civ. 5982.
• Court: Alabama Court of Civil Appeals

Page 739

518 So.2d 739

Linda Kay PATTERSON v. George Michael PATTERSON.

Civ. 5982.

Court of Civil Appeals of Alabama.

Oct. 14, 1987.

Rehearing Denied Nov. 13, 1987.

Certiorari Denied Jan. 22, 1988

Alabama Supreme Court 87-253.

Jerry Knight of Hardwick, Knight & Haddock, Decatur, for appellant.

George Michael Patterson, pro se.

EDWARD N. SCRUGGS, Retired Circuit Judge.

This post-divorce litigation is for the recovery of property which was awarded to the plaintiff, the husband, by the divorce judgment. From an adverse judgment, the defendant appealed.

Before rendering the divorce, the trial court heard evidence which was in great dispute as to the possession of personal property which is here involved. When the trial court orally announced in open court the terms of the divorce judgment, including the property awards to the parties, the trial court stated that, "The gun collection is awarded to the plaintiff and if there are any guns that he does not have, then he should have the right to obtain those from the marital residence. Likewise, the knife collection, the boat, the motor and trailer and various items of equipment that go with the boat are awarded to the plaintiff...." The trial court further pointed out that some of the plaintiff's personal items, such as tools, were located at the marital residence and that he had the right to obtain those items. It was further directed that the plaintiff receive the items which were in the possession of the register. The trial court requested that the defendant's attorney prepare the final divorce judgment. The presently pertinent provisions of the judgment as written were that the full, complete, and exclusive title, ownership, and possession of the following were awarded to the plaintiff: (1) the gun collection; (2) the boat, motor, trailer, and other accessories used in connection therewith; (3) all of the tools situated at the marital residence; and (4) the guns presently in the possession of the register. No appeal was taken from the divorce judgment.

The plaintiff insisted that the defendant turn over to him five or six guns, certain accessories to the boat, and certain tools. The defendant denied that she possessed those items or that she had any knowledge of their whereabouts. The plaintiff instituted the present proceedings wherein he sought from the defendant the possession of those particular items of personal property or their alternate value and he requested that the defendant be adjudged to be in contempt of court. Both parties testified as to the missing property in approximately the same manner as they had each previously testified at the divorce trial. The trial court rendered the following judgment on January 22, 1987:

"The parties hereto were divorced on October 24, 1985. A division of personal property was made and items awarded as designated in the decree. The plaintiff, George Michael Patterson, has filed this action alleging the defendant, Linda Kay Patterson, to be in contempt for refusing to make available to him certain items which he was awarded. He lists them in his petition. He asks the items be delivered or, in the alternative, he be awarded the alternate value of the property. The defendant insists the action is barred on account of the doctrine of res adjudicata, i.e., the issue was adjudicated at the time of the divorce. She also claims, among other defenses, that she does not have the items sought by the plaintiff.

"The defendant has earlier filed a motion for a summary judgment and that motion was denied.

"Evidence was heard on January 14, 1987, and decision taken under advisement.

"The divorce case was tried on September 13, 1985. An order relating to personal property was entered at that time. That order is of record. Further proceedings were scheduled for October 24, 1985, and it was on that date the final decree was entered. The Court heard evidence at the time of the divorce trial and additional evidence at this proceeding (January 14, 1987) on the personal property question. It appears some items the parties owned were then and are now unaccounted for and both parties testify to be unaware of the whereabouts of the items. Both deny taking the items in question.

"The defendant is correct in her contention that the Court ruled on the issue at divorce. The property owned by the parties was equitably divided and awarded in the final divorce decree. But a finding and ruling to that effect now does not settle the issue. Any reconsideration of the award of personal property is barred by the doctrine of res adjudicata. The issue here, however, is not the award but the implementation of the award; the implementation of the court's decree.

"The Court awarded the plaintiff the items he lists in his petition and the court finds he has yet to gain possession of those items. Questions to be resolved are: Is it due to the plaintiff's own fault or negligence that he is without the property? The Court is of the opinion it is not. Has the plaintiff's complaint been timely and properly made? The Court is of the opinion it has. Is it due to the defendant's fault, negligence or misconduct that the plaintiff has failed to obtain the items? The court is of the opinion that the defendant's responsibility has been sufficiently proven.

"It is impossible here to review all the evidence and testimony and in addition the conference in chambers with the attorneys of record. It is important to express however that the Court has carefully reviewed the case and is of the opinion the above conclusions are warranted and correct.

"After the parties' separation, the defendant had possession of the marital residence. She was responsible to secure and maintain the property at the residence, including the items claimed herein by the plaintiff. On at least one occasion the plaintiff returned to the marital residence, actually broke into the house, and secured some guns and possibly other items. The Court is satisfied the plaintiff did not then nor at any other time take the items claimed in his petition. The Court is...