DANZEY v. DANZEY, 744 So.2d 947 (Ala.Civ.App. 1999)

Billy Wayne Danzey v. Cynthia Jane Danzey.

No. 2980542.Court of Civil Appeals of Alabama.
October 1, 1999.

Appeal from the Henry Circuit Court, No. (DR-98-31), Denny L. Holloway, Judge.

Thomas K. Brantley, Dothan, for appellant.

Gene Spencer of Bullard, Bullard Spencer, Dothan, for appellee.

CRAWLEY, Judge

Billy Wayne Danzey (the “husband”) and Cynthia Jane Danzey (the “wife”) were divorced in 1990. At the time of their divorce, they entered into an agreement that, among other things, awarded the wife the marital residence and the six acres of land upon which it was situated. That agreement was incorporated into the judgment of divorce. The paragraph in the divorce judgment awarding the wife the marital residence reads as follows:

“10. [The husband] shall execute and deliver to [the wife] an appropriate Warranty Deed conveying all of his right, title and interest in the former marital residence . . . and the six (6) acres of real property upon which said marital residence is located. . . . The purpose of this Warranty Deed shall be to divest [the husband] of any interest in the former marital residence and the aforesaid six (6) acres of real property. [The wife] shall receive all right, title and interest of [the husband] in said house and six (6) acres of real property. [The wife] shall be responsible for payment of the first mortgage owed on said house and six (6) acres of real property to

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Altus Bank, a Federal Savings Bank. [The husband] shall be responsible for and shall pay any second mortgage, third mortgage and/or any other liens and encumbrances existing on said house and six (6) acres of real property. The purpose of this paragraph is to vest [the wife] with absolute fee simple title to said house and six (6) acres of real property and to require and order [the wife] to be responsible for and to pay the outstanding first mortgage on said property. [The husband] shall be responsible for payment on any second mortgage and [the husband] shall hold [the wife] harmless from payment of any second mortgage, third mortgage and/or any other lien or encumbrance on said property. [The wife] shall be responsible for all real estate taxes due on said property.”

In 1998, the wife filed a petition, seeking to hold the husband in contempt for failing to pay off the indebtedness secured by the marital residence and the surrounding property that he was made responsible for in the divorce judgment. After a hearing on the wife’s petition, the trial court ordered the husband to “clear” the indebtedness on the house and the property within four months, in compliance with the divorce judgment. The husband appeals, arguing that the trial court’s order is an impermissible modification of the property settlement under the 1990 divorce judgment. We agree and reverse.

The wife argues that the trial court was simply clarifying the divorce judgment by imposing eight years as a reasonable time for the husband to have retired the indebtedness secured by the property. However, our reading of the relevant paragraph in the divorce judgment does not lead us to conclude that the trial court was merely clarifying the judgment. The judgment required the husband to pay the indebtedness secured by the property and to hold the wife harmless as to that indebtedness. Nothing in the judgment required the husband to pay off the indebtedness within any specified time. The trial court’s “clarification” granting the husband four months in which to retire the indebtedness imposes upon the husband a requirement that does not appear in the divorce judgment.

Generally, the property provisions of a divorce judgment are not modifiable more than 30 days after the judgment. Martin v. Martin, 656 So.2d 846, 848 (Ala.Civ.App. 1995). The trial court’s order substantially changes the meaning of the divorce judgment. Thus, the order is an impermissible modification of the divorce judgment. The judgment of the trial court is reversed, and the case remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Robertson, P.J., and Thompson, J., concur.

Yates and Monroe, JJ., dissent.

YATES, Judge, dissenting.

Because I believe that the court’s action in giving the husband four months to satisfy paragraph 10 of the divorce judgment was a permissible clarification of that agreement, I must respectfully dissent.

Although paragraph 10 did not provide a time certain in which the husband was required to satisfy the indebtedness secured by the house and the property, the court inferred that the indebtedness was to be satisfied within a “reasonable” time. The court determined that eight years was a reasonable time for the husband to have complied with paragraph 10 and gave him four months to satisfy the indebtedness.

This court has stated:

“A trial court possesses an inherent power over its own judgments that enables it to interpret, implement, or enforce those judgments. Patterson v. Patterson, 518 So.2d 739 (Ala.Civ.App. 1987). If provisions of a property settlement are ambiguous, the court may enter an order clarifying such matters, and

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such is not a modification of that agreement. Williams v. Williams, 591 So.2d 879 (Ala.Civ.App. 1991). Property settlements pursuant to divorce judgments generally are not modifiable; however, this court has held that although a divorce judgment is final for the purpose of appeal, it may also be interlocutory in nature `insofar as necessary to implement or enforce the provisions as to final disposition of the property.’ Haney v. Haney, 50 Ala. App. 79, 81, 277 So.2d 356, 358 (1973).”

Grayson v. Grayson, 628 So.2d 918, 919 (Ala.Civ.App. 1993). The court simply exercised its inherent power and entered an order necessary to enforce its judgment of divorce. Paragraph 10, as originally written, creates an ambiguity because it fails to provide a time certain for the husband to satisfy the indebtedness on the house and the property. Without this clarification, the judgment would allow the husband conceivably to never satisfy the indebtedness because the provision does not require a specific time in which to satisfy the indebtedness. Accordingly, I would affirm the judgment of the court.

Monroe, J., concurs.