Wise v. Watson

• Decision Date: 11 June 1970
• Docket Number: 4 Div. 384
• Citation: 236 So.2d 681,286 Ala. 22
• Parties: Harold L. WISE et al. v. Elbert Ray WATSON, a Minor, etc. , 384--A.
• Court: Alabama Supreme Court

Page 681

236 So.2d 681

286 Ala. 22

Harold L. WISE et al. v. Elbert Ray WATSON, a Minor, etc.

4 Div. 384, 384--A.

Supreme Court of Alabama.

June 11, 1970.

W. H. Baldwin, Andalusia, for appellants.

Powell & Sikes, Andalusia, for appellee.

McCALL, Justice.

The bill of complaint in this case was brought by a minor, Elbert Ray Watson, suing by his father and next friend, Regenal R. Watson, against his mother, Elizabeth G. Wise, formerly Elizabeth G. Watson, and his stepfather, Harold L. Wise, to have set aside and held for naught a deed executed on September 14, 1967, by the respondent, Elizabeth G. Watson (now Wise), to the respondent, Harold L. Wise, her present husband, and to vest the title to the real property therein described in the minor complainant.

Prior to their divorce in 1963, the complainant's father, Regenal R. Watson, and mother, Elizabeth G. Watson, owned the real property constituting their homestead for their joint lives with the right of survivorship in the survivor of them, upon the death of either. When the parents became irreconciliably parted in their married life, they mutually agreed by executing a separation agreement, dated November 30, 1963, among other settlements, that custody of their minor son, the complainant, should remain with his mother, the respondent in this case, and that the father would pay stated sums and provide certain other contributions and benefits toward the support and maintenance of the mother and minor son.

In paragraph 9, of this settlement agreement, Watson agrees to convey the said home to his wife, subject to the following 'restrictions' to be referred to in the deed and made a part of it, viz.:

'A. In the event that the Complainant should remarry, the property will immediately revert to the child, Elbert Ray Watson.

'B. In the event that the Complainant should remarry, she agrees to keep up the house payments as long as she occupies the property.

'C. In the event that the Complainant should fail to make the house payments and that there should be danger of the house being foreclosed, the property shall revert to the minor child, Elbert Ray Watson, and the Respondent shall have the right to make the house payments for the benefit of the minor child.'

The concluding paragraph of this separation agreement is as follows:

'This agreement has been made and executed by the parties hereto on the day and date hereinabove set forth, in good faith, with full understanding of all of its provisions, and with the mutual promise on the part of each to comply therewith faithfull (sic) and completely.'

Regenal R. Watson and his then wife, Elizabeth G. Watson (now Wise), as grantors, next both executed and delivered a warranty deed dated December 5, 1963, purporting to convey the fee simple title to the property to Elizabeth G. Watson, as grantee, with her assuming and agreeing to pay the balance due on the outstanding mortgage lien against the property. The deed further recites:

'This deed is made subject to provisions of that certain Divorce Decree between the grantors dated December 6th, 1963, and said Decree is incorporated herein and made a part hereof as if fully set out.'

The final decree of divorce dated December 6, 1963, to which the said separation agreement between the husband and wife appears to be attached, after dissolving the bonds of matrimony, between the parties adjudges and decrees as follows:

'The Complainant and Respondent have reached an agreement as to property settlement, custody and support of the minor child and said agreement is made a part hereof as if fully set out.'

Thereafter, without mentioning any of the provisions, relating to the conditions under which the title to the real property might subsequently become vested in the complainant, which are contained in the said separation agreement and referred to in the deed to Elizabeth G. Watson and in the final decree of divorce, the respondent Elizabeth G. Watson conveyed said real property to the respondent, Harold L. Wise, by deed, dated September 14, 1967, containing full covenants of warranty, for a recited consideration of $10 and other valuable consideration. Actually, no money passed to the grantor, Mrs. Watson, from the respondent Wise, and said conveyance was admittedly made in contemplation of the marriage of Elizabeth G. Watson and Harold L. Wise. This deed was recorded on the day of its execution in the records of the Probate Court of Covington County, Alabama. A week later, on September 21, 1967, the respondents, Elizabeth G. Watson and Harold L. Wise, were married to each other. The respondents contend that this conveyance was made to Wise to secure him in sums he was to expend on the subject property.

The complainant contends that the conveyance was voluntarily made in contemplation of the approaching marriage of the respondents and without any consideration for the purpose of avoiding the provisions of the separation agreement between Elizabeth G. Watson and Regenal R. Watson, or for the purpose of defrauding the complainant of the title to the real property. The respondents denied these allegations in their answer and filed a cross bill averring that when the deed was executed to Wise, it was understood and agreed between the parties that the house was in dire need of repairs, and that Wise made the repairs along with certain additions at an expenditure to him of $3,348.29. After this work was completed, the respondents with their respective children, moved into the house and have since occupied it as their home. Wise has continued to make the mortgage payments that Mrs. Wise had kept up until their marriage. The cross bill prays that the conveyance to Elizabeth G. Watson be declared an 'outright conveyance' by Regenal R. Watson of his undivided one-half interest to her, but if mistaken in this that the court fix a lien on said undivided onehalf interest to secure Wise for the moneys spent by him in its improvement.

The trial court set aside the deed from Elizabeth G. Watson to Harold L. Wise, divested him of title to said real property and invested it in the complainant, Elbert Ray Watson, subject to the outstanding mortgage held by Liberty National Life Insurance Company.

The court further decreed a lien against the property in favor of Harold L. Wise in the amount of $4000 for sums spent by him on the property, plus $2,094.24 for mortgage payments made by him on the property, being a total of $6,094.24, which the court offset by $3000, in the complainant's favor for the reasonable rental of the property at the rate of $150 per month, charged against the said Wise, for his period of occupancy, leaving a balance decreed to be due him of $3,094.24. The court secured this by a lien in Wise's favor against said property.

When equity's jurisdiction is invoked, minor children are wards of the court, and it is the court's duty to guard and protect the interest of its infant wards with scrupulous care. Scott v. Mussafer, 223 Ala. 153, 134 So. 857; First National Bank of Oneonta v. Robertson, 220 Ala. 654, 127 So. 221; State v. Worthington, 25 Ala.App. 511, 149 So. 707, cert. den. 227 Ala. 204, 149 So. 709. In case of divorce of the parents, equity courts have inherent power to protect the welfare of the minor children born of the broken marriage and to make appropriate allowances for them, Murrah v. Bailes, 255 Ala. 178, 50 So.2d 735; Butler v. Butler, 254 Ala. 375, 48 So.2d 318; and, having once obtained jurisdiction over the children of divorced parents, the court retains jurisdiction during their infancy. Ex parte Ingalls, 256 Ala. 305, 54 So.2d 288; Bridges v. Bridges, 227 Ala. 144, 148 So. 816; Porter v. Porter, 216 Ala. 169, 112 So. 646.

The separation agreement which appears to have been influenced by conciliatory negotiation between the Watsons became merged into the final decree, and while said agreement ceased to operate as such, the decree is as effective as any other decree with the same terms, whether or not there was ever an agreement to that effect. Callen v. Callen, 257 Ala. 226, 58 So.2d 462; Russell v. Russell, 247 Ala. 284, 24 So.2d 124; Montgomery v. Montgomery, 275 Ala. 364, 155 So.2d 317. While the court is not controlled by such separation agreements of the parties, and may adopt or reject them as it seems proper, Russell v. Russell, supra; Williams v. Williams 261 Ala. 328, 74 So.2d 582, the court, no doubt, deeming this voluntary agreement to be fair, reasonable and just in its provisions for the support, care and maintenance of the divorced wife and minor son, and free from fraud, duress or other coercion, adopted its terms as a feature of its final decree of divorce.

The final decree of divorce with the separation agreement merged into it dictates the outcome of this litigation. Under it Regenal R. Watson was to and did convey to Elizabeth G. Watson his joint tenancy estate in the real property with his right of survivorship to the whole, and Elizabeth G. Watson was to and did subject her fee simple title to a determinable fee in the event she should remarry. The deed to the wife, executed pursuant to the separation agreement incorporates and makes that decree of divorce a part of it, as though fully set out therein, and the decree of divorce makes the settlement...