Lundy v. Lundy

Court of Civil Appeals of Alabama

Lundy v. Lundy

322 So. 2d 722, 56 Ala. App. 431, 1975 Ala. Civ. App. LEXIS 510

CourtCourt of Civil Appeals of Alabama

DecidedNovember 19, 1975

DocketCiv. 595

StatusPublished

Cited by1 cases

This text of 322 So. 2d 722 (Lundy v. Lundy) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lundy v. Lundy, 322 So. 2d 722, 56 Ala. App. 431, 1975 Ala. Civ. App. LEXIS 510 (Ala. Ct. App. 1975).

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Opinion

WRIGHT, Presiding Judge.

This is an appeal from a decree divorcing the parties herein. Appellant, the wife, seeks reversal because the decree does not designate with sufficient certainty the real property she is to receive. We agree.

The decree, after granting a divorce for incompatibility of temperment between the parties, made the following order :

“It is further CONSIDERED, ORDERED, ADJUDGED AND DECREED by the court that the plaintiff be and is hereby awarded the exclusive possession of the home of the parties located at Wing, Alabama, together with so much of the land as has been used for yard and garden for the remainder of her life.”

A judgment should be complete and certain in itself. Gandy v. Hagler, 245 Ala. 167, 16 So.2d 305. We have examined the pleadings and testimony in the court below and find nothing therein to delineate the boundary of the yard and garden. Although it is possible that the parties know of and could agree on the current size of the plot, the court’s decree should not leave such matters uncertain. In light of the fact that this home is located within a tract of land which has been and will continue to be farmed by the husband, the size of the yard and garden may have varied over the years. As it stands, the order is not sufficiently certain to define the wife’s right of possession, nor would it afford her protection were a third party to enter the picture.

No appeal has been taken from other aspects of the decree. The uncertain portion of the order can be made certain without disturbing the remainder of the decree by the taking of further testimony concerning the size of the yard and garden.

We therefore affirm the decree except for the part granting the home to plaintiff for life. We reverse that part of the decree only because of its uncertainty of description and remand to the trial court with direction to describe the property so that it may be located on the ground.

Affirmed in part, remanded in part with direction.

BRADLEY and HOLMES, JJ., concur.

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WRIGHT, Presiding Judge.

This is an appeal from a decree divorcing the parties herein. Appellant, the wife, seeks reversal because the decree does not designate with sufficient certainty the real property she is to receive. We agree.

The decree, after granting a divorce for incompatibility of temperment between the parties, made the following order :

“It is further CONSIDERED, ORDERED, ADJUDGED AND DECREED by the court that the plaintiff be and is hereby awarded the exclusive possession of the home of the parties located at Wing, Alabama, together with so much of the land as has been used for yard and garden for the remainder of her life.”

A judgment should be complete and certain in itself. Gandy v. Hagler, 245 Ala. 167, 16 So.2d 305. We have examined the pleadings and testimony in the court below and find nothing therein to delineate the boundary of the yard and garden. Although it is possible that the parties know of and could agree on the current size of the plot, the court’s decree should not leave such matters uncertain. In light of the fact that this home is located within a tract of land which has been and will continue to be farmed by the husband, the size of the yard and garden may have varied over the years. As it stands, the order is not sufficiently certain to define the wife’s right of possession, nor would it afford her protection were a third party to enter the picture.

No appeal has been taken from other aspects of the decree. The uncertain portion of the order can be made certain without disturbing the remainder of the decree by the taking of further testimony concerning the size of the yard and garden.

We therefore affirm the decree except for the part granting the home to plaintiff for life. We reverse that part of the decree only because of its uncertainty of description and remand to the trial court with direction to describe the property so that it may be located on the ground.

Affirmed in part, remanded in part with direction.

BRADLEY and HOLMES, JJ., concur.

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322 So. 2d 722, 56 Ala. App. 431, 1975 Ala. Civ. App. LEXIS 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lundy-v-lundy-alacivapp-1975.

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