Vainrib v. Downey
| Decision Date | 30 May 1990 |
| Citation | 565 So.2d 647 |
| Parties | James R. VAINRIB v. Fabian W. DOWNEY. Civ. 7436. |
| Court | Alabama Court of Civil Appeals |
Charles L. Dunn, Birmingham, for appellant.
Richard J. Stockham III, Birmingham, for appellee.
The facts material to this appeal and dispositive of the issue presented are undisputed. The parties were divorced in October 1984. The parties' final decree of divorce incorporated their agreement concerning the terms of the divorce. For purposes of this appeal, the pertinent parts of the agreement are as follows:
In April 1989 the husband filed a "Petition to Modify Final Judgment of Divorce or, in the Alternative, for Clarification." The petition alleged that a material and substantial change in circumstances had occurred in that the wife was remarried and employed and no longer in need of any support which would be provided from the husband's military retirement benefits. He further averred that paragraph 9 of the decree was ambiguous and in need of further clarification by the court in order for the parties to properly ascertain their rights, duties, and obligations thereunder.
The trial court found the terms of the agreement to be clear and unambiguous. More specifically, he found the portion of paragraph 9 stating that the wife shall receive 50 percent of the husband's retirement to be a property settlement and, therefore, not a modifiable item. Over the husband's objection, the trial court refused to admit evidence, by way of parol testimony, of the intent of the parties regarding paragraph 9.
On appeal, the husband contends that the agreement presents an ambiguity because it is unclear whether paragraph 9 deals with child support or property settlement. On the other hand, the wife contends that the agreement, as it pertains to the facts of this case, is clear and unambiguous.
Whether an agreement is ambiguous is a question of law for the trial court. Terry Cove North v. Baldwin County Sewer Authority, Inc., 480 So.2d 1171 (Ala.1985). When the agreement is reasonably susceptible to more than one meaning, an ambiguity exists. The instrument is...
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