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Matthews v. Matthews6/30/1998
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. III
In a post-decree proceeding the former wife sought to execute upon the divorced husband's interest in his homestead to satisfy two judgments for child support arrearage. In accordance with their post-divorce settlement, the property in question was held by the former spouses as tenants in common. The District Court, Coal County, Doug Gabbard, trial Judge, (a) overruled the husband's motion to quash and objection to sale and (b) confirmed the sale sought by the wife. The husband appealed from the adverse post-decree orders. The Court of Civil Appeals affirmed. On certiorari granted upon the husband's petition,
THE COURT OF CIVIL APPEALS' OPINION IS VACATED, THE TRIAL COURT'S ORDERS ARE REVERSED AND THE CAUSE STANDS REMANDED FOR DISPOSITION NOT INCONSISTENT WITH THIS COURT'S PRONOUNCEMENT
The dispositive issue on certiorari is whether the divorced wife, a cotenant (with the ex-husband) of the property in contest, has established an enforceable post-decree plea for the premises' sale on execution by showing an interest that is superior to the former husband's defense of homestead-status protection. We answer in the negative.
I.
THE ANATOMY OF LITIGATION
George and Johnnalyn Matthews [husband, former husband, divorced husband and wife, former wife and divorced wife] were divorced by consent decree entered on 24 May 1984. Their marital property came to be divided, custody of two minor children was awarded to the wife, and the husband's child support obligation was set.
According to the decree's terms, the wife took possession of the marital home where she remained for over a year. She remarried and moved to California with her children and the new spouse. The divorced husband then moved back into the former spousal home. He neglected to make child support payments for several years. The wife, who had commuted the arrearage to judgment, pressed for a sale of the premises on execution. The husband defended by interposing his homestead-status protection. After overruling the husband's motion to quash and his objection to sale, the trial court confirmed the sale that was pressed by the wife. He timely appealed from the two adverse decisions. The Court of Civil Appeals affirmed.
II.
THE OWNERSHIP REGIME OF THE PROPERTY IN SUIT
A.
The Parties' Property Ownership Regime Under
The Terms Of Their Divorce Decree
According to the 24 May 1984 divorce decree, which incorporates the party's predivorce settlement agreement, the wife is to receive as her "separate property . . . the home of the parties." The decree provides that the wife is "to have possession of the home" until she remarries or abandons it, at which time the husband "has the right to possession of the home" with the power to sell it. In the latter event, the equity is to be divided equally between the parties. The wife lived in the home until 1985 when she remarried and departed from the state. The husband then moved into the spousal house and began making mortgage payments. The parties agree that since 1985 the husband has been occupying this property as his homestead.
Although the decree sets aside the property to the wife, it gives the husband occupancy rights (on wife's remarriage or abandonment of possession), an equal share in the equity on sale of the premises, as well as the exclusive power to sell the property. Where a divorce is granted an
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