Appeal from Lauderdale Circuit Court. (DR-90-020.03). Donald H. Patterson, TRIAL JUDGE.
Rehearing Overruled March 10, 1995, . Released for Publication June 27, 1995.
Sam A. Beatty, Retired Justice. All the Judges concur.
The opinion of the court was delivered by: Beatty
Angela Wilson Morgan Waller and Sam Monroe Morgan were divorced by the Lauderdale Circuit Court on March 2, 1990. The judgment ratified a settlement agreement between the parties that provided, in pertinent part, as follows:
"The husband shall maintain a policy of health insurance covering each of the children of the marriage and shall further be liable to pay any sums not paid by said medical insurance for the medical expenses incurred by the children including but not limited to ... (e) dental expense [and] (f) orthodontic expense ....
"... Any other items of personal property belonging to the parties shall become the sole property of the wife to the extent that they are not included upon the schedule of personal property attached hereto as Exhibit A."
The trial court, in an ancillary proceeding, entered an order dated November 9, 1990, which provided the following:
"The father will not be financially responsible for any ELECTIVE ... dental services rendered to the children of the parties unless it be shown that the wife has obtained the prior consent and agreement of the father ...."
In a later supplementary proceeding, a further agreement between the parties was incorporated into an order dated May 15, 1992, which provided in part as follows:
"The Husband shall not be responsible for elective ... orthodontics ... unless they are prescribed by a physician. However any such expense may be agreed to between the parties and paid by one or both of the parents in accordance with such agreement.
"Both parties acknowledge, however, that Dr. David Merritt, D.D.S., has already notified the parties that orthodontic work is necessary for both minor children and will need to begin at the appropriate time. Also, regular tooth cleanings and check-ups will be the ex-husband's ongoing responsibility as scheduled by Dr. Merritt."
On September 23, 1993, the wife asked for a declaratory judgment, claiming that a jointly owned revenue refunding bond issued by the University of South Alabama in the amount of $70,000, which was not specifically mentioned in the settlement agreement ratified by the judgment of March 2, 1990, should be declared her property by virtue of the parties' agreement. The wife also alleged that the husband was delinquent ...