Smith v. Smith

• Decision Date: 13 December 1978
• Citation: 365 So.2d 88
• Parties: Harold Wayne SMITH v. Gaye Nell SMITH. Civ. 1573.
• Court: Alabama Court of Civil Appeals

Page 88

365 So.2d 88

Harold Wayne SMITH v. Gaye Nell SMITH.

Civ. 1573.

Court of Civil Appeals of Alabama.

Dec. 13, 1978.

Alvin T. Prestwood and W. Michael Young, Montgomery, for appellant.

Harold Howell, Prattville, for appellee.

BRADLEY, Judge.

Former husband appeals from two separate judgments rendered by the Circuit Court of Montgomery County in a domestic relations case. We affirm that part of the (We note that the decree concerning the property settlement is styled "Case No. DR 77-459-02." However, some of the pleadings and the former husband's notice of appeal relating to that decree style the case as Case No. DR 77-459-03. For purposes of clarity we shall adopt the designation used in the notice of appeal.)

decree of May 15, 1978 in Case No. DR 77-459.03, which states that the provisions in an agreement requiring payments of $114 per month by the husband to the wife constitute a part of the property settlement and, as such, are not further modifiable; we reverse that portion of the decree awarding attorney's fees to the wife. We reverse the order of May 15, 1978 in Case No. DR 77-459.02 which denied the former husband's motion for a new trial.

The parties to this appeal were divorced in July 1973. Portions of the separation agreement, which was incorporated into the final divorce decree by the trial court, provided in pertinent part:

1. The Husband shall pay to the Wife as alimony for her support and maintenance the sum of One Hundred Fifty and No/100 ($150.00) Dollars per week.

2. The Husband shall purchase for the Wife a residence at 1317 Huie Street, Prattville, Alabama, and the title to said residence shall vest solely and exclusively in the Wife. The purchase price of said residence in Prattville is Thirty-Three Thousand Five Hundred Fifty and No/100 ($33,550.00) Dollars. The Husband shall pay the cash equity due on said house of approximately Seventeen Thousand Nine Hundred and No/100 ($17,900.00) Dollars, and shall make the monthly house payments on the mortgage on said residence Until said mortgage is fully paid. . . . and it is further understood and agreed that the payments made by the Husband on said mortgage shall be In addition to the alimony payments as provided in paragraph 1 above.

5. The Wife shall convey to the Husband all of her right, title and interest in and to the real estate owned by Husband and Wife and more specifically identified as (description of various properties). . . .

7. The Husband shall provide for the Wife adequate hospitalization insurance coverage for the Wife and minor son, and the Husband shall pay the premiums thereon and furnish to the Wife a copy of such hospitalization policy. Said hospitalization policy shall be Blue Cross-Blue Shield or its equivalent. (Emphasis supplied.)

The wife encountered financial difficulties and in March 1976 sold the residence referred to in paragraph two of the separation agreement. At the closing of this sale the wife paid off the outstanding balance on the mortgage, $14,192.85. The circuit court issued a decree on October 12, 1976 which adopted an agreement submitted by the husband and wife, whereby the husband agreed to continue making the $114 per month payments in accordance with the original amortization schedule of said mortgage loan. Under this new agreement, however, these payments would be made to the Wife rather than to the mortgage company since the debt owed to the latter had been extinguished.

On January 4, 1978 the wife petitioned the court to cite the husband for contempt based on his failure to make the $114 monthly payments for the past two months and his failure to maintain the required hospitalization insurance policy. The wife's petition itemized the medical and doctor expenses she had incurred as a result of the husband's allowing the policy to lapse.

On March 15, 1978 the trial court issued a decree, relevant portions of which read:

DECREE

This cause comes before the Court on a Petition for Citation for Contempt and there being present in Court both parties and their respective attorneys and after consideration of the testimony and evidence presented to the Court, the Court finds as follows, to-wit:

1. That Harold Wayne Smith is to pay the Wife the sum of $1,380.00 which represents one-half of the outstanding indebtedness arising from the hospital insurance policy having lapsed.

2. Gaye Nell Smith shall be responsible for the remaining $1,380.00 and the payment of all of said bills upon receipt by her from the Husband of the amount of $1,380.00.

3. That the costs of Court be, and they hereby are, taxed against the Husband, together with the sum of $275.00 as an attorney fee for the Wife's attorney.

In response to this decree the husband filed a motion for new trial, alleging that the decree was contrary to the law and the evidence in the case and not supported by the evidence in the case. The court denied this motion on May 15, 1978.

Meanwhile, the husband had filed a petition to modify the divorce decree, alleging Inter alia that the wife had remarried on February 24, 1978. The petition asked the court to relieve the husband from any and all obligations under the divorce decree as modified, including the $114 per month payments based on the former mortgage loan. After a hearing on this motion the trial court entered a decree which stated that the husband owed no further alimony by reason of the wife's remarriage; that, except as provided in the above-quoted decree of March 15, 1978, the husband had no further obligations with respect to the hospital insurance policy; and

2. That payments due by virtue of a decree dated October 12, 1976 of $114.00 per month to the Wife in accordance with an original amortization schedule on a mortgage loan on premises at 1317 Huie Street, Prattville, Alabama, which decree modified paragraph 2 of the Separation Agreement incorporated in the original decree of divorce, Are deemed by the Court to be a property settlement and not to be alimony, and therefore is not further modifiable by this Court. (Emphasis supplied.)

This decree also required the husband to pay $150 toward the attorney fee for the wife's attorney.

The husband contends on appeal that the trial court erred in its decree in Case No. DR 77-459.03 by failing to eliminate the requirement that the husband continue the $114 per month payments based on the mortgage loan. He argues that since the language of the separation agreement required only that he make the payments "until said mortgage is fully satisfied," a continuation of these payments After the mortgage has been satisfied (by the wife in 1976) constitutes the kind of support and maintenance properly classified as "alimony"; and upon the wife's remarriage his obligation to pay alimony should cease. While agreeing it is the law in Alabama that provisions in a divorce decree for a property settlement, unlike those for alimony, are not modifiable, the husband insists that these payments must be viewed as "alimony" because the court's decree of October 12, 1976 "modified" the provisions for the payments by requiring that they be made to the wife rather than to the mortgage company.

We think these arguments are without merit and that the trial court correctly found that the payments are a part of the property settlement. The husband by his argument seeks to take improper advantage of the fact that he was originally permitted to satisfy his obligations under the property settlement with monthly installments rather than being required to make an immediate cash settlement.

A court of equity in a divorce case has power to use any reasonable means to effect a just property settlement and adjust the equities between the parties. Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 855, Cert. den. 287 Ala. 740, 249 So.2d 860 and 287 Ala. 740, 249 So.2d 861 (1971), and cases cited therein. The agreement incorporated into the divorce decree in the case at bar specifically provided that the mortgage payments were to be In addition to alimony payments. The wife was to receive sole and exclusive title to the Huie Street residence, and in exchange she was to relinquish her interest in other jointly held property. The decree of October 12, 1976 changed neither the amount due nor the liability of the husband for the $114 per month payments. Under these circumstances we do not think that a mere change of payee from the mortgage company to the wife transformed these payments into "alimony," nor do we think that the satisfaction of the mortgage debt by the wife extinguished the husband's obligation to continue the payments required by the decree.

The case cited by the husband, McGugin v. McGugin, Ala.Civ.App., 357 So.2d 347 (1978), is distinguishable from the case at bar, because in McGugin the husband was not required to satisfy the entire mortgage debt, but rather was obligated only to pay off the balance of the mortgage if his wife did not remarry before the debt had been liquidated. In the instant case, however, the husband's duty to make the monthly mortgage payments was unconditional.

The Alabama Supreme Court said in DuBoise v. DuBoise, 275 Ala. 220, 153 So.2d 778 (1963), that a property settlement is not continuous; it is a one time thing. The rule permitting a court to modify a provision for periodic support payments does not apply to a provision for division of property. Id ; Kelley v. Kelley, 53 Ala.App. 608, 303 So.2d 108 (1974). The trial court correctly applied these principles to the facts in this case.

The husband's second contention is that the trial court erred in its decree of March 15, 1978 by requiring the husband to pay one-half of the medical expenses incurred by the wife as a result of the lapse of the insurance policy. He argues that the lapse was caused by the wife's own neglect and inaction, and that the decree, in effect, makes the husband the co-insurer of the wife's health. Much of the testimony in the record and argument in brief...