Wallace v. Wallace

• Decision Date: 11 March 2005
• Parties: Joanna Wilkerson WALLACE v. Leon Joseph WALLACE.
• Court: Alabama Court of Civil Appeals

909 So.2d 827

Joanna Wilkerson WALLACE v. Leon Joseph WALLACE.

2030855.

Court of Civil Appeals of Alabama.

March 11, 2005.

Cindy S. Schuessler of Schuessler & Sandlin, Florence, for appellant.

Lindsey Mussleman Davis of Holt, Mussleman, Holt & Morgan, Florence, for appellee.

THOMPSON, Judge.

On April 21, 2003, Leon Joseph Wallace ("the husband") filed a declaratory-judgment action against Joanna Wilkerson Wallace ("the wife"). The husband requested that the trial court declare that he had satisfied his obligation under the parties' property-settlement agreement, which had been incorporated into their divorce judgment. On May 13, 2003, the wife answered the husband's petition and filed a counter-petition requesting that the trial court find the husband in contempt of court for his alleged failure to pay her the amount due under the property-division portion of their divorce judgment. The husband's answer to the counterpetition, as amended, asserted the affirmative defense of accord and satisfaction.¹ The wife moved the trial court for a summary judgment; the trial court denied that motion.

The trial court conducted a hearing on November 18, 2003, at which it received ore tenus evidence. On January 23, 2004, the trial court entered a judgment in favor of the husband, finding, among other things, that the husband had fully satisfied his obligations under the property-division portion of the divorce judgment. On February 20, 2004, the wife filed a post-judgment motion; that motion was denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P. The wife timely appealed.

Our review of the record reveals the following facts. On September 24, 2001, the parties were divorced by a judgment of the trial court. The divorce judgment incorporated the terms of an agreement reached by the parties. The judgment stated that the parties jointly owned a home, the marital home, which was subject to a mortgage indebtedness and an equity-line indebtedness. The parties had entered into an option-to-purchase contract with a third party to sell the marital home. The divorce judgment provided that if the option to purchase was not exercised, the wife would have the "use and possession" of the marital home until the home was sold. The judgment also provided that the parties would equally divide the responsibility for making the mortgage and equity-line payments until the marital home was sold. The judgment did not provide a specific time limitation for the duration of the wife's use and possession of the marital home or for the duration of the requirement that the parties equally share responsibility for the payments. Under the judgment, the shared payments were to continue until the "closing of the sale" of the marital home. Additionally, under the heading "Property Settlement," the judgment provided:

"The husband shall pay to the wife the sum of $8,750 in 22.72 monthly payments of $385 each over a term not to exceed 28 months. Payments shall begin on the first day of the month following the closing of the sale of the marital residence."

(Emphasis added.)

At the hearing in this matter, the wife testified that the option-to-purchase contract was not exercised and that the sale of the marital home anticipated by the parties at the time of the divorce did not materialize. The wife stated that she had made an effort to sell the marital home by placing a sign in the yard and by showing the marital home to potential buyers but that the marital home did not sell until January 2003, approximately 16 months after the parties were divorced.

According to the wife, she lived in the marital home by herself during that period; the husband had moved to Florida before their divorce was finalized. The wife stated that throughout the 16-month period during which she lived in the marital home after the divorce, she divided the marital-home payments with the husband. The wife explained that even after the marital home was sold, she continued to live in the home as a tenant of the buyer. She remained there until June 2003, when contractors finished building a new home she had purchased. The wife stated that the husband occasionally expressed to her his concern about the length of time the marital home had been on the market and about how much it was costing him to share the payments on the debt owed on the marital home with her.

The husband testified that he sent an e-mail message to the wife in May 2002 expressing his concern about the delay in the sale of the marital home. The husband indicated in his testimony that the wife had failed to properly market the marital home. The husband explained that when he was in town on one occasion, he observed that the marital home did not have a "for sale" sign in the yard, that the home was not listed with any real-estate agency, and that there was no other type of marketing of the home. After that, the husband testified, he listed the marital home with his own realtor. A "real estate sales contract" submitted to the trial court reflects that the marital home was sold approximately four months after the husband listed it with a realtor.

The husband testified that since the parties' divorce he had paid the wife a total of $9,599.83 for his one-half share of the indebtedness on the marital home. The husband submitted into evidence his calculations to support his claim of having paid that amount. The husband testified that in February 2003, after the marital home had been sold, he sent the wife a check for $840 and an accompanying letter dated February 17, 2003. The husband submitted into evidence a copy of the check and the letter. The "memorandum line" of the check read "property settlement—payment in full." In the February 17, 2003, letter the husband wrote, in relevant part:

"[D]ocumentation will show that I have met the spirit of the [settlement agreement]. As the only person living in the house and driving the car, you are the sole beneficiary of the funds that have been paid....

"In fact, you have gotten your money (or the benefit thereof) faster by the turn of events. Instead of paying $8,750 over a period (not to exceed 28 months), I have paid over $7,910 in 15 months. Enclosed you will find a check for the balance of the property settlement in the amount of $840."

(Emphasis added.)

The wife testified that after she received the husband's check in February 2003 she consulted with her attorney. Following the consultation, the wife's attorney wrote the husband's attorney a letter dated February 24, 2003. That letter, submitted into evidence, stated in relevant part:

"[The wife] contacted me and informed me the closing on the house was in January 2003. Under the terms of the divorce [judgment], [the husband] is to begin making monthly payments to [the wife] the month following the closing in the amount of $385 per month until the sum of $8,750 has been paid. [The wife] informed me she received a check from [the husband] in the amount of $840 which stated `property settlement—payment in full.'

"I do not know the rationale behind [the husband's] actions, but the balance due per the court order is $7,910.

"....

"Please forward this letter to [the husband] and advise him to make the monthly payments as ordered to avoid contempt proceedings."

The wife testified that after she consulted with her attorney, she crossed out the "in full" phrase from the check. The wife then cashed the check in April 2003.

The trial court's January 23, 2004, judgment states, in pertinent part:

"The court has considered the evidence presented and finds that said agreement presumes a reasonable time period will apply as to the performance under the terms of the [divorce judgment]. The court finds that more than 16 months passed from the date of the [judgment] until actual closing of the house and that during that time, the husband paid a total sum of $8,432 for the house in which the wife continued to live until the closing and, in fact, until her house was ready to be moved into several months later.

"The court further finds that the husband exercised due diligence in attempting to get the house sold and that there was evidence which indicated that the wife, who continued to reside in the house with the husband paying one-half of the payments on the house and who had relocated to Florida, did not necessarily exercise the same level of diligence in and about the sale of the house.

"The court further finds that following the closing of the sale of the house, the husband sent to the wife a check for $840 which he stated was payment in full on any amounts due under the property settlement in light of amounts which he had previously paid during the pendency of the sale. The husband set forth this accounting in a letter to the wife, which accompanied the $840 check. The court further finds that the husband marked the check `property-settlement-payment in full' when it was sent to the wife. The wife altered said check and marked out the `in full' portion. She then endorsed the check and negotiated it for the $840 amount. The wife does not dispute that she altered the check in this fashion and that she was aware of the husband's position that this was payment in full.

"The court finds that agreements entered into between a husband and a wife are not unlike other contracts entered into in Alabama. The court will presume the parties intend to make a reasonable contract rather than an unreasonable one.

"The court finds that the wife's action by taking the check marked payment in full and marking out the `in full' portion then accepting the proceeds therefrom constitutes an accord and satisfaction of the amounts owed. Further, the court finds that the husband otherwise discharged his obligations under the property settlement for a period longer than a reasonable period of time as would be construed under the terms of the original settlement agreement between the parties. As such, the husband has fully discharged his

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