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08/11/95 MARY VIRGINIA SMITH v. HENRY PADGITT SMITH

August 11, 1995

MARY VIRGINIA SMITH
v.
HENRY PADGITT SMITH



Appeal from Madison Circuit Court. (DR-93-1418.01). Jeri Blankenship, TRIAL JUDGE.

Released For Publication February 20, 1996.

Wright, Retired Appellate Judge, Thigpen, Yates, Monroe, and Crawley, JJ., concur. Robertson, P.j., concurs in the result.

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

The parties were divorced on September 1, 1993. The judgment of divorce incorporated an agreement of the parties. The husband filed a timely Rule 60(b), Alabama Rules of Civil Procedure, motion to have the judgment, in pertinent part, set aside. Following oral proceedings, the trial court granted the husband's motion. The wife appeals.

The record reflects that the parties were married for 36 years. In late 1992 the wife discovered that the husband was engaged in an extramarital affair. On December 4, 1992, she withdrew $56,000 from the parties' savings account at Redstone Federal Credit Union (Redstone savings account) and $25,000 from their joint checking account. The husband requested that she return the money to the accounts. The wife returned the money to the Redstone savings account, but failed to return the money to the checking account.

The husband testified that the Redstone savings account was his account. The wife was listed as co-owner of the account. The husband testified, however, that the wife did not make any contributions to the account and that she had never made any withdrawals from the account, except the withdrawal made on December 4, 1992. It was his understanding that the wife had always considered the Redstone savings account to be his account. In January 1993 the parties separated. On January 28, 1993, the husband withdrew $6,000 from the Redstone savings account in order to furnish his new residence.

The parties began divorce negotiations. The husband told the wife that all he wanted was his car, his clothing, and the Redstone savings account. The wife was to receive $1,000 per month for one year in periodic alimony; stocks, valued at $130,000; an IRA, valued at $13,000; a tax-deferred annuity, valued at $50,000; deferred compensation, valued at $40,000; the checking account, valued at $25,000; the marital home and all the furnishings, valued at $110,000; and a vacant lot, valued at $75,000.

At the time of the divorce the husband was employed as an engineer, earning approximately $77,000 per year. The wife had an AA teaching certificate and was earning approximately $40,000 per year.

On July 20, 1993, the wife, without the husband's knowledge, withdrew the funds from the Redstone savings account and deposited them into her account. She testified that the parties' negotiations had been finalized prior to her withdrawal of July 20, 1993. She felt, however, that she was entitled to the Redstone savings account, and she wanted to make sure that the husband did not get it and spend it on his girlfriend.

On August 28, 1993, the wife gave the husband a copy of the agreement drawn up by her attorney. The husband did not have an attorney. On August 30, 1993, the husband signed the agreement at the office of the wife's attorney. The agreement conformed to the parties' negotiations. Among other things, the husband was awarded the Redstone savings account. The divorce became final on September 1, 1993.

While investigating a possible investment opportunity, the husband discovered on November 23, 1993, that the wife had withdrawn the funds from the Redstone savings account. This was the first time the husband had become aware that the funds had been withdrawn by the wife. He testified that he had not checked the status of the account since January 1993, when he made the $6,000 withdrawal. He stated that he did not routinely check the monthly statements and that he never had. He did not think it was necessary since he was the only one who made the deposits and the withdrawals.

On December 2, 1993, the husband filed a motion pursuant to Rule 60(b), Ala. R. Civ. P., requesting that the trial court set aside the judgment of divorce. He alleged that the wife had fraudulently allowed the agreement to be executed, giving him the Redstone savings account, knowing that she had already withdrawn the funds. Following oral proceedings, the trial court ordered the wife to pay to the husband $56,668.11, plus the interest accrued. All other provisions of the judgment remained in full force and effect.

The wife appeals and asserts that the trial court erred in setting aside the judgment of divorce and in ordering her to return to the husband the funds which she ...


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