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Smith v. Smith

Alabama Court of Civil Appeals

April 12, 2019

Kandi Smith
v.
Heath Smith

          Appeal from Bibb Circuit Court (CV-17-900011)

          THOMPSON, PRESIDING JUDGE.

         Kandi Smith ("the wife") appeals from a judgment of the Bibb Circuit Court ("the trial court") divorcing her from Heath Smith ("the husband").[1] Specifically, the wife challenges certain amendments the trial court made to the final judgment in response to the parties' postjudgment motions regarding the division of marital property and other miscellaneous provisions.

         The record indicates the following. On February 8, 2017, the husband filed in the trial court a complaint for a divorce. On February 15, 2017, the trial court ordered the parties to mediate the matter and appointed a mediator. The parties met for mediation, and in July 2017 they executed an agreement ("the agreement") that was incorporated into the August 2017 divorce judgment.[2] The agreement provided that, among other things, the wife

"will retain the [marital residence]. [The husband] will issue a quit claim deed to the [wife] for this property. [The husband] will get first right to purchase the property should [the wife] choose to sell. [The wife] will not sell for at least 10 years or until all of the [husband's] debts associated with the business at the time of this [judgment] are paid off.
"The enclosed @ one-acre pasture located at this address will be deeded to [the husband]. [The husband] will [have] the property surveyed and a quit claim deed prepared.[3]
"....
"The [wife] will retain the unattached garage building located on the property in Woodstock, Al.[, the location of the marital residence]."

         On August 6, 2017, the trial court entered the judgment ("the August 2017 judgment") divorcing the parties, dividing the marital property, deciding custody, and setting forth the parties' child-support obligations. Regarding the division of the marital residence and the surrounding property, the judgment closely tracks the language of the agreement.

         On September 5, 2017, the husband filed a timely motion to alter or amend the August 2017 judgment, asserting that there were "several clauses contained" in that judgment that did "not accurately state the agreement reached by the parties." On September 6, 2017, the trial court entered an order directing the parties to reconcile the differences and to submit a proposed judgment within ten days. The record does not indicate that either party submitted a proposed judgment as the trial court had requested. Instead, on November 16, 2017, the parties filed a joint motion to extend the time for the trial court to consider the motion to alter or amend the August 2017 judgment, as permitted by Rule 59.1, Ala. R. Civ. P. In their joint motion, the parties stated that they were attempting to resolve "several issues regarding the children and the property." The same day, the trial court granted the motion.

         The parties returned to mediation. On August 7, 2018, the trial court entered an order stating that the mediator had informed the court that the parties had engaged in a lengthy mediation, agreeing on several issues. However, the order continued, "there was still one issue on the table when the [wife] terminated the mediation by leaving abruptly." The trial court then ordered the parties to submit written arguments within 14 days, identifying the items that they had agreed upon and the items they had not agreed upon.

         On August 20, 2018, the wife responded to the trial court's directive, saying that she was in agreement with all of the provisions of the August 2017 judgment except those pertaining to real estate. The wife, who submitted her August 20, 2018, document pro se, argued that, once the survey of the property was performed, it indicated that the husband was going to receive "a half acre more than the original mediated agreement called for and included property that was directly abutting the unattached garage specifically awarded to [the wife] in the original agreement." The wife went on to say that the survey indicated that the husband would receive 1.61 acres, not the 1.2 acres to which she had agreed. She appeared to argue that the husband had claimed a second, .41-acre parcel of land in addition to the 1.2-acre parcel she had intended that he receive in the agreement. The wife asked the trial court to set a formal hearing on the matter to take testimony from the parties and the surveyor.

         The husband filed a proposed order containing a number of amendments to the August 2017 judgment regarding the children and the division of the marital residence and surrounding property. In the husband's proposed order, he suggested that the August 2017 judgment be amended to award the husband "Parcel No. 1" as depicted on the survey and to award the wife "Parcel No. 2" as depicted on the survey. Among his other proposals was the provision that the husband would pay half of the cost of softball for each child "provided that he is permitted to take the child to lessons at least half of the time."

         On August 23, 2018, the trial court entered an amended judgment ("the amended judgment") incorporating the husband's suggestions, including the provision regarding the husband's payment of half of the cost of softball. As to the dispute over the marital residence and surrounding property, the trial court amended ...


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