Opinion
Civ. 4878.
October 16, 1985. Rehearing Denied November 13, 1985.
Appeal from the Circuit Court, Baldwin County, Phyllis S. Nesbit, J.
Charles C. Partin, of Stone, Partin, Granade, Crosby Blackburn, Bay Minette, for appellant.
James R. Owen and David A. Simon, of Owen, Ball Simon, Bay Minette, for appellee.
This case concerns the interpretation of a divorce decree.
The parties were divorced in 1983. In 1984, the wife filed a petition for rule nisi, alleging that the husband had failed to follow certain portions of the divorce decree relating to the parties' former home. The husband filed a counterclaim, by which he sought the court's permission to convert the cash value of an existing life insurance policy owned by the wife to a $300,000 universal life policy.
The trial court ruled in favor of the husband on his counterclaim and ordered the wife to liquidate the insurance policy and surrender the proceeds to a trust, the beneficiaries of which are the parties' children. From this order the wife appeals. We affirm.
The primary, if not the sole, issue before this court is whether the trial court exceeded its authority in ordering the wife to liquidate the insurance policy and surrender its proceeds to the children's trust.
The wife, through able counsel, argues that the parties' divorce decree included the insurance policy among the property awarded to her. She argues that the trial court, therefore, had no authority to subsequently modify the divorce decree by divesting her of her ownership of the policy.
In support of this argument, the wife relies upon the rule that, after a lapse of thirty days from the date of a final decree of divorce, a court cannot modify a division of the property of the parties. Boyd v. Boyd, 447 So.2d 790 (Ala.Civ.App. 1984). While the rule announced in Boyd is correct as a general principle of law, we disagree with the wife's contention that such rule is applicable in the present case.
The subject life insurance policy was apparently owned by the wife during the parties' marriage, and she was also the beneficiary. The only provision in the parties' divorce decree which addressed the insurance policy states as follows:
"11. The Plaintiff shall make the five children of the marriage [joint] irrevocable beneficiaries of the E.F. Hutton Life Insurance Policy number 33966-00 at such time as the mortgage on the medical building is satisfied. The Respondent shall make the five children of the marriage, [joint] irrevocable beneficiaries of the Provident Mutual policy number 2,005,536. The Respondent is further ordered to make each of the five children revocable joint beneficiaries of the Provident Mutual Policy number 2,229,347 and the United States Veterans Life Insurance policy. Respondent is directed to keep all such policies in full force and effect."
Contrary to the wife's assertions, this provision in the divorce decree did not grant ownership of the subject insurance policy to her. Rather, it appears that the trial court made no determination whatsoever in the divorce decree with regard to the ownership of the policy. It merely ordered the wife to designate the parties' children as the beneficiaries of that policy.
It is a settled rule of law that, when a trial court fails to make a specific disposition of an asset of the parties in a divorce decree, the parties are left in the same position relative to that asset as they were prior to the divorce. Lacy v. Lacy, 403 So.2d 251 (Ala.Civ.App. 1981); Miller v. Miller, 391 So.2d 119 (Ala.Civ.App. 1980). A court, having failed to dispose of the property in the original decree, is free to do so upon subsequent request of one of the parties. Lacy, 403 So.2d at 254.
Because the trial court in the present case failed to award the insurance policy to either party in the original divorce decree, the parties' relation to that policy continued as it had been during the marriage, i.e., the wife continued to own the policy. The trial court was thus free to order the disposition of the policy upon application by the husband through his counterclaim.
We find no error by the trial court, or action in excess of its jurisdiction, by its ordering the wife to liquidate the insurance policy and surrender the proceeds to a trust for the parties' children. We note, moreover, that the trial court's order was perfectly consistent with its earlier requirement in the divorce decree that the children be designated as the beneficiaries of the policy.
This case is due to be and is affirmed.
AFFIRMED.
BRADLEY, J., concurs.
WRIGHT, P.J., dissents.
I must respectfully dissent from the majority's decision.
In this case, the parties have agreed, in their respective briefs, that because she owned the life insurance policy prior to the divorce decree, the wife still owned the policy after the decree. As there is no issue as to the ownership of the policy in question, I fail to understand how the trial court had any authority to issue any order, subsequent to the original decree, concerning a disposition of the policy.
A divorce decree dividing the parties' property between them is not subject to modification, except for clerical errors, after the lapse of thirty days from entry of the decree. Michael v. Michael, 454 So.2d 1035 (Ala.Civ.App. 1984); Bromley v. Bromley, 449 So.2d 1252 (Ala.Civ.App. 1984).
More than thirty days had passed before any subsequent action was taken to modify the decree as to a disposition of the insurance policy. As no argument has been made that the original decree as to the policy was modifiable, and since the trial court did not expressly retain jurisdiction over the policy, we must conclude that the trial court had lost jurisdiction to modify the original decree as to the policy. See Bromley, supra.
I must respectfully disagree with the majority reasoning that "[a] court, having failed to dispose of the property in the original decree, is free to do so upon subsequent request of one of the parties."
I cannot find any case precedent to support the majority conclusion. In Lacy v. Lacy, 403 So.2d 251 (Ala.Civ.App. 1981), we stated that:
"[T]he failure of the court to rule [on each and every aspect of the parties' financial condition] simply leaves the parties in the same position relative to the [property] as they were in prior to the divorce. . . . By the above, we should not be understood as determining who in fact owns the [property] or their respective interests therein. If there are future "problems" regarding this aspect, a trial court must first determine these matters upon proper action brought before such court." (Emphasis added.)
Apparently, the majority has taken the above-emphasized language as support for its position that the trial court retains the jurisdiction to dispose of, in a subsequent decree, any property not specifically disposed of in the original decree. Such a reading, however, misconstrues the language and meaning of the statement.
With the above-emphasized language, this court was merely noting that, in the event questions arise, after the issuance of an original decree, concerning who is the owner of specific property, the question of ownership of such property may be determined by a proper action in court. This statement could not mean that such determination is to be made by opening the divorce case in which judgment has been final beyond thirty days. Of course, our courts are always open to entertain actions to determine ownership of property. Our courts may not re-open final judgments of divorce to determine ownership and disposition of property not previously before it.
A division of property is nonmodifiable after final judgment. Tinsley v. Tinsley, 431 So.2d 1304 (Ala.Civ.App. 1983); Parr v. Parr, 423 So.2d 229 (Ala.Civ.App. 1982). It may well be contended that the effect of the majority decision does just that.