Smith v. Smith

• Decision Date: 31 March 1982
• Citation: 429 So.2d 1047
• Parties: Eugene SMITH, Jr. v. Dorothy Jean SMITH. Civ. 2983.
• Court: Alabama Court of Civil Appeals

Page 1047

429 So.2d 1047

Eugene SMITH, Jr. v. Dorothy Jean SMITH.

Civ. 2983.

Court of Civil Appeals of Alabama.

March 31, 1982.

Rehearing Denied May 12, 1982.

Donald M. Briskman, Mobile, for appellant.

George A. Tonsmeire, Jr., Mobile, for appellee.

BRADLEY, Judge.

This is an appeal from an order of the Mobile County Circuit Court impressing an equitable lien upon the property of appellant.

The parties to the proceeding were divorced on November 4, 1971. The divorce decree awarded the parties' jointly-owned home to the husband, and provided that he would assume the outstanding mortgage on the property. The wife was ordered to convey her interest in the property to the husband within thirty days from the date of the decree; in the event she failed to do so, the register of the court was empowered to execute the conveyance on her behalf.

The terms of the 1971 decree were not enforced by the husband. Mrs. Smith failed to convey her interest in the property to Mr. Smith, and has remained in possession of the house until the present time. Mr. Smith did not take any steps to have the title to the property entered solely in his name. The reason for the parties' failure to comply with the decree is unclear. Mr. Smith, a merchant seaman, testified that after the divorce Mrs. Smith stated to him that she was terminally ill, and that, based on her representations, he consented to let her remain in the house "for a few days." Mrs. Smith denied that any such conversation took place, and testified that she remained in the house after the divorce "[b]ecause he told me I could have it." In any event, Mr. Smith apparently did nothing to oust his former wife from the property until 1979, the beginning of the events leading up to this lawsuit.

The evidence is in dispute concerning the payment of the monthly mortgage installments. Mr. Smith testified that he made "most" of the payments up until 1978. He admits that he made no payments in 1979 or 1980. Mrs. Smith, on the other hand, testified that, aside from a few payments made by Mr. Smith within the first six months following the divorce, she has made all of the mortgage payments on the property up to the present time. The evidence is unclear as to whether the parties had an agreement to the effect that Mrs. Smith would make the mortgage payments on the house in return for Mr. Smith's allowing her to stay in possession of the house.

Mr. Smith remarried in 1979. In February of that year he obtained a deed from the register of the court, as provided in the 1971 decree. In March of 1980 Mr. Smith filed a contempt proceeding against Mrs. Smith, asking the court for possession of the house, and requesting that Mrs. Smith be placed in contempt for her failure to vacate the premises as required by the divorce decree. Mrs. Smith filed an answer to the petition, alleging that she had made the mortgage payments on the house and had paid for certain improvements to the property, and was the equitable owner of the premises. She requested the court to correct the deed to show her as the true owner of the property.

During the pendency of the contempt proceeding, Mrs. Smith commenced a separate proceeding in the equity division of the circuit court to determine the equitable ownership question. The court dismissed the suit without prejudice, finding that the issue should be tried in the pending contempt proceeding.

After an ore tenus hearing on the matter, the court, on August 13, 1981, rendered a decision, finding that there was no gift of the property from Mr. Smith to his ex-wife, and that title to the house remained in Mr. Smith pursuant to the 1971 decree. The court then ordered that a $15,000.00 lien should be impressed on the house in favor of Mrs. Smith, and that the property was to be sold in order to satisfy the lien. Mr. Smith appeals from that judgment.

Appellant asserts three grounds for relief on this appeal: (1) the court's judgment impressing an equitable lien upon the property and ordering the house sold is in essence an improper modification of a property settlement entered into pursuant to a valid decree of divorce and is therefore unenforceable; (2) the statute of frauds prevents passage of the title to the property to appellee by gift; and (3) the imposition of an equitable lien on the property is erroneous, since there was no evidence of any improper conduct on appellant's part.

With regard to appellant's second contention that the statute of frauds prevents passage of title to the property by gift, we note that the court in its decree specifically found that there was no gift involved. Therefore, this issue will not be considered.

The resolution of appellant's first issue, that the trial court's decree is an improper modification of a property settlement, depends upon a construction of the decree itself. The decree, although clear in its effect, does not on its own sufficiently indicate the basis for the court's decision. We must determine that basis in order to properly review the decision.

Judgments are construed like other written documents. If there is uncertainty within the decree, this court must construe it so as to express the intent of the trial judge. Such an intent can be derived from the provisions of the judgment. Price v. Price, 360 So.2d 340 (Ala.Civ.App.1978).

As stated above, the court found that there was no gift of the property from appellant to appellee. Title to the property remained, therefore, in appellant pursuant to the 1971 decree. The trial court, however, impressed an equitable lien in favor of appellee upon the property in the amount of $15,000.00.

An equitable lien is in effect a charge against certain property for the purpose of securing a debt. 51 Am.Jur.2d Liens § 22 (1970). Its purpose is to prevent the unjust enrichment of one party at the expense of another. Id. Equitable liens may arise by express...