Daily Development for Wednesday, August 31, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC
School of Law
Of Counsel: Blackwell Sanders
Peper Martin
Kansas City, Missouri
dirt@umkc.edu
MARITAL PROPERTY; DIVORCE SETTLEMENTS; WAIVER OF CLAIMS: Statement in divorce settlement that “Wife [disclaims] any and all interest she may have in any interest in which Husband owns in any business or other property including, but not limited to, Flowerwood Nursery . . . ,” together with an agreement to execute any transfer documents to carry out such waiver, is not an agreement by Wife to release her joint tenancy interest in the acreage on which Flowerwood Nursery exists.
Smith v. Smith, 892 So. 2d 384 (Ala. App. 2003)
The court, held that the language was not ambiguous as a matter of law, and that the language clearly indicates that the wife agreed only to give up any interest she had in any interest that her husband had in the nursery, and, since her husband had no interest in her joint tenancy interest, she preserved that interest. In doing so, the appeals court reversed a trial court ruling for the husband.
There was other evidence of a “correction deed” that wife had signed immediately after the parties had obtained their joint tenancy interests in the Nursery. The court held that it had no effect.
Comment: How can this language not be found to be ambiguous and open to interpretation? There is no explanation adduced by the court as to what other interests in the nursery property the wife might have been surrendering. Presumably the divorce itself ended any marriage-based expectations, such as inheritance claims. Although the correction deed was not held to be valid, it does explain why the husband acquiesced in the language as written into the settlement, since he believed that he owned the business and that the business owned the land.
It is difficult to see why the court felt it appropriate to overrule the trial court’s decision here. One judge dissented and one recused himself. Only three judges concurred.
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