Shivers v. Shivers

272 So. 3d 193
CourtCourt of Civil Appeals of Alabama
DecidedAugust 31, 2018
Docket2170228; 2170229
StatusPublished

This text of 272 So. 3d 193 (Shivers v. Shivers) 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
Shivers v. Shivers, 272 So. 3d 193 (Ala. Ct. App. 2018).

Opinion

THOMAS, Judge.

Jerry Todd Shivers ("the former husband") and Paula Kimberly Shivers ("the former wife") were divorced by a 2010 judgment of the Shelby Circuit Court ("the *196trial court"). The parties have three children, whose physical custody was awarded to the former wife. The 2010 divorce judgment incorporated an agreement of the parties, which contains the following provisions pertinent to this appeal:

"CHILD CUSTODY, VISITATION & SUPPORT:
"....
"p. ['The extracurricular-expense provision']: ... [The former husband] and [the former wife] agree to make decisions regarding school activities and functions together and split the cost of all school expense and field trips (i.e., Six Flags trips, etc.) for the children. They also agree to split the ordinary and usual cost for extra activities (i.e., school and local softball and children's activities).
"....
"s. Children's First Automobile: After each child turns 16 years of age, [the former husband] will be responsible for 1/2 the cost of a reliable automobile for their use, including 1/2 insurance costs and maintenance.
"....
"REAL ESTATE:
"Marital Residence. The parties jointly own the marital residence and lot ... and [the former wife] and children shall reside in said marital residence until the home is sold. All rights of physical possession will be awarded to [the former wife] to maintain a continuity of life for the children. [The former wife] will have exclusive physical rights to the property until it is sold, with [the former husband] allowed to enter the homestead only with written permission from [the former wife] stating date, time, duration, and purpose. During this time, and until the home is sold, the home will remain titled to [the former husband] and [the former wife] as joint tenants with rights of survivorship. ... [The former wife] will have the option of living in the home for thirty months prior to placing the home on the market with the following conditions requiring the sale of the property prior to this time period.
"a. [The former husband] marries another individual and gives [the former wife] a 6 month notice in writing that the home will need to be sold to eliminate his financial ties to [the former wife]. [The former wife] will have the option to refinance and purchase 1/2 the equity from [the former husband] or [the former husband] may refinance and purchase the equity from [the former wife] based on the current market value and based on a contractual offer made by an unrelated third party, if an equitable dollar amount can not be agreed upon by [the former husband] and [the former wife].
"....
"c. If [the former wife] should remarry, she and her new husband will have 4 months to pay [the former husband] for his 1/2 equity within [the] 30 month period, should any exist, or the home must be put on the market for sale. [The former wife] will have the option to refinance and purchase 1/2 the equity from [the former husband] or [the former husband] may refinance and purchase the equity from [the former wife] based on current market value and based on a contractual offer made by an unrelated third party, if an equitable dollar amount can not be agreed upon by [the former husband] and [the former wife].
"[The former wife] shall choose three realtors when the sale of the home is eminent [ (sic) ] and [the former husband] will choose the final realtor from *197these three options. ... Upon the closing of a sale of the residence, the net proceeds from the sale, after satisfaction of the mortgage indebtedness, real estate commissions, and normal and routine closing costs, shall be divided as stated herein below. All costs or expenses paid by [the former husband] or [the former wife] for repairs or maintenance needed to sell the home or repairs needed for [the former wife] and children to remain in the home, i.e., air conditioner, heating system, and the like, will be reimbursed to [the former husband] or [the former wife] out of the equity proceeds, upon the sale of the home, and the remaining divided as stated below.
"... All major repairs in the marital residence such as heating and air conditioning system, septic system, or plumbing system, or repairs suggested by the realtor for the sale, i.e, repainting and the like, shall by paid by [the former husband] and [the former wife] equally of if by one person that person repaid before the division of the equity. Additionally, should [the former husband] be behind in his payments to [the former wife] for child support and the like than these shall be deducted as well.
"... [The former husband] and [the former wife] shall not in any way attempt to hinder, destroy, or decrease the value of the home in any way. When the home is for sale, [the former wife] shall keep the home in showable condition. [The former husband] shall keep the yard maintained and in showable condition or pay someone who will do so.
"... [The former wife] will advise [the former husband] of any repairs or pending issues with the home until the home is sold. ..."

In March 2016, the former husband filed in the trial court a complaint, seeking to have the former wife held in contempt for various alleged violations of certain provisions of the 2010 divorce judgment, including the former wife's failure to have the former marital residence listed for sale within the time provided in the 2010 divorce judgment, and seeking a modification of his child-support obligation because the parties' eldest child had reached the age of majority; the former husband's action was assigned case number DR-10-900208.03 ("the former husband's action"). The former wife answered the former husband's complaint. The trial court entered a pendente lite order reducing the former husband's child-support obligation by agreement of the parties.

In July 2016, the former husband moved the trial court to order an immediate sale of the former marital residence. The former wife opposed the former husband's motion, arguing that the former husband had failed to assist with maintenance and repairs so that the former marital residence could be placed on the market. The former wife later filed a separate complaint in which she sought to have the former husband held in contempt for failing to pay certain amounts she claimed were due to her under the 2010 divorce judgment and sought an order awarding her the parties' former marital residence; the former wife's action was assigned case number DR-10-900208.05 ("the former wife's action").1

*198

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Bluebook (online)
272 So. 3d 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shivers-v-shivers-alacivapp-2018.