Smith v. Smith

• Decision Date: 15 August 1990
• Court: Alabama Court of Civil Appeals
• Parties: James R. SMITH v. Judie K. SMITH. Civ. 7307.

Page 838

568 So.2d 838

James R. SMITH v. Judie K. SMITH.

Civ. 7307.

Court of Civil Appeals of Alabama.

Aug. 15, 1990.

Ruth S. Capra, Birmingham, for appellant.

Roger D. Burton of Jaffe, Burton and Digiorgio, Birmingham, for appellee.

RUSSELL, Judge.

This is an appeal from the circuit court's denial of post-trial motions.

Judie K. Smith (deceased) and James R. Smith (appellant) were divorced on September 5, 1989. The divorce was entered pursuant to an agreement between the parties, which was incorporated into the decree. As a consequence of that agreement, the parties' marital home was to be sold within six months and the proceeds of such sale were to be divided equally between them. Until such time as the home could be sold, however, the deceased was awarded the exclusive right to reside therein.

The deceased died on September 17, 1989. Subsequently, the appellant filed a motion in the circuit court, seeking to alter, amend, or vacate the order of September 5, 1989, or, in the alternative, a Rule 60(b), Alabama Rules of Civil Procedure, motion for relief from the judgment divorcing the parties. He concomitantly filed a motion to suggest death, as well as a motion seeking possession of the marital home pending the administration of the deceased's estate. All such motions were denied by the circuit court.

This appeal followed. We affirm.

Initially, we note that a judgment of divorce following an ore tenus proceeding is presumed correct and will not be set aside unless it is plainly and palpably wrong. Lucero v. Lucero, 485 So.2d 347 (Ala.Civ.App.1986).

Furthermore, a settlement agreement which is incorporated into a divorce decree is in the nature of a contract. Brocato v. Brocato, 332 So.2d 722 (Ala.1976). Therefore, the rule governing relief from judgment is not to be used for the purpose of relieving a party from a free, calculated, and deliberate choice which he has made. Porter v. Mobile Pulley & Machine Works, 507 So.2d 529 (Ala.Civ.App.1987).

Moreover, in the absence of fraud, collusion, or accident, a settlement incorporated into a divorce decree is binding and cannot be set aside pursuant to Rule 60(b). Brocato, 332 So.2d at 724.

The appellant maintains that the death of a party to a divorce proceeding, prior to expiration of the time in which an appeal may be filed, does not abate the right to an appeal. Generally, the death of one of the parties to a divorce decree results in the abatement of the cause of action. However, abatement does not result when the decree affects property rights, and matters touching the parties' property rights under the divorce decree are amenable to alteration or modification upon timely motion, or upon appeal. Hill v. Lyons, 550 So.2d 1004 (Ala.Civ.App.1989). See also Stapleton v. Stapleton, 282 Ala. 62, 209 So.2d 202 (1968).

Furthermore, for the point of clarification, we note that there has been no challenge asserted against the appellant's right to pursue an appeal of the circuit court's order. Since this court agrees that the action did not abate upon the death of the deceased, we will now address the merits of the appellant's arguments.

The appellant first asserts that the circuit court erred in denying his motion to alter, amend, or vacate the judgment divorcing the parties, or, in the alternative, his motion for relief from judgment pursuant to Rule 60(b).

He argues that his motion should have been granted because, he says, the decree of divorce did not destroy the joint tenancy with right of survivorship that he held with the deceased. Therefore, he asserts that the divorce decree should have been vacated and that possession of the marital home should have been awarded exclusively to him. We disagree.

In Watford v. Hale, 410 So.2d 885 (Ala.1982), the supreme court concluded that, where the parties had incorporated a property settlement in their divorce decree whereby each was to share mortgage expenses until such time as they mutually agreed to sell the home, the joint tenancy with right of survivorship was converted into a tenancy in common with no such survivorship rights. There, it was reasoned that the intent of the parties, as evidenced by the divorce decree, was that the marital home be sold and that it would no longer be held in joint tenancy.

Similarly, in Kirven v. Reynolds, 536 So.2d 936 (Ala.1988), a joint tenancy was held to be severed by a decree providing that the husband was to have exclusive possession of the marital home, which was to be sold when the parties' minor child reached the age of majority, married, or otherwise became self-sufficient or upon the husband's remarriage.

In the case at hand, a similar agreement was entered into by the parties, evidencing their intent to sell the marital home within six months of the date of divorce and then to share equally in the proceeds. Furthermore, the deceased was awarded the exclusive right to...