APPEAL from the Circuit Court of Pulaski County; the Hon.
RICHARD E. RICHMAN and the Hon. DOROTHY W. SPOMER, Judges,
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal by the plaintiff, Deweese Scruggs, from an order entered by the circuit court of Pulaski County denying certain relief, requested by her petition for rehearing, from a divorce decree awarded plaintiff, which provided for child support and lump-sum alimony.
On December 1, 1971, the plaintiff filed a complaint against the defendant, James Scruggs, praying for: (1) a divorce from the defendant, (2) custody of the minor children "and reasonable child support for said minor children," (3) alimony, (4) defendant to pay plaintiff's attorney fees and court costs, and (5) a property settlement to be made. Defendant, in response thereto, filed an answer and a counterclaim on March 17, 1972. On April 4, 1972, plaintiff filed an answer to defendant's counterclaim and an amended complaint. The prayer contained in plaintiff's amended complaint reiterated the provisions embraced in the prayer of plaintiff's original complaint with the exception of provision (5), which was amended to read: "That a property settlement be made and the Plaintiff be awarded one-half of the real estate and other property accumulated by the parties." In neither plaintiff's complaint nor in her amended complaint did she assert any special equities or contributions in support of her request for a property settlement.
On September 26, 1972, the cause was called for trial and on October 19, 1972, a "decree" was entered by the trial court. This decree ordered, among other things, that the marriage be dissolved, and
"That the plaintiff herein desires no installment alimony payments and expressly herein refuses and relinquishes right to claim same, now and forever, but defendant will pay plaintiff as alimony in gross the sum of $10,000 within ninety (90) days from the date of the filing of the said Decree, * * * and it is ordered that neither the plaintiff or defendant will take any alimony, one from the other, now and forever, neither being entitled to same, one from the other, except herein stated."
On November 13, 1972, the plaintiff, after retaining new counsel, filed a motion to partially vacate the decree, and a motion for rehearing. This motion alleged that the property settlement was made by plaintiff's attorney without her consent. She moved to set aside all of the provisions of the decree except for the provision dissolving the marriage. On February 1, 1973, the trial court entered an order granting plaintiff's motion to partially vacate and plaintiff's motion for rehearing, on the basis of her previous attorney having no authority to enter into the property settlement.
On March 8, 1973, a hearing was held to determine the rights and obligations of the parties under the divorce decree. The majority of the testimony presented therein concerned the defendant's income, the value of defendant's business property, the defendant's debts, the plaintiff's contribution to defendant's business, the condition and value of various properties owned by the parties, the needs of the plaintiff, and the medical and educational requirements of the parties' unemancipated child, Jerry Scruggs. After hearing the testimony of the defendant, plaintiff, and Jerry Scruggs, the trial court took the matter under consideration.
On March 27, 1973, the trial court entered a "supplemental decree." Under this decree the defendant was ordered to pay $12,000 alimony in gross to the plaintiff, $20 per week for support of the son, Jerry Scruggs, the medical and educational expenses of said son, $500 to J.C. Mitchell (counsel for plaintiff), and $204 to Mr. Lorek (previous counsel for plaintiff) for costs advanced by him in the prosecution of plaintiff's claim. This decree also incorporated, "with the exception of Paragraphs 3 and 9 of the original Decree, and as otherwise modified in the foregoing Paragraphs of this Decree, Paragraphs 2 through 13, inclusive, of the original Decree * * *." The unmodified provisions of the "original decree" incorporated into the second decree included, among others, provision 5, which awarded the "homeplace" of the parties and the furniture and household goods located therein to the plaintiff, provision 6, which awarded three described pieces of real estate located in Mound City to the plaintiff, ordered the defendant to convey his interest in such real estate to the plaintiff by quitclaim deeds, and ordered defendant to pay the 1971 taxes on such real estate, provision 7, which awarded certain "property referred to as the Kinslow conveyance" to the plaintiff, ordered the defendant to convey his interest in such real estate to the plaintiff by quitclaim deed, and ordered defendant to pay the 1971 taxes thereon, provision 10, which provided that the plaintiff and defendant were individually and not jointly, responsible for any debts incurred after September 1, 1971, and provision 13, which ordered the plaintiff to convey any interest she may have in six described pieces of real estate, including the property on which the defendant operated an I.G.A. grocery store, to the defendant.
Subsequently, plaintiff filed a motion for rehearing. She alleged therein that,
"The alimony in gross awarded to Plaintiff by Defendant is, as a matter of law, less than that shown by the manifest weight of the evidence. Based upon the evidence in the record, said alimony in gross should not have been less than Twenty-Four Thousand Dollars ($24,000.00)."
She further alleged that the child support should not have been less than $40 per week, she should be given one-half interest in the "Real estate where Defendant's place of business is now located," the supplemental decree did not correctly award her the automobile (title of which remained in defendant's possession), and the defendant had another bank account of which she had just learned.
On June 26, 1973, the date set for rehearing, counsel for both parties argued in support of their cause. The argument of plaintiff's counsel with respect to the inadequacy of the alimony in gross award contained in the supplemental decree was based solely upon the insufficiency of the amount. In response to the plaintiff's claim of newly discovered assets, the defendant's counsel made the following statements; that the new bank account was an account held by the defendant and his second wife, that there were two accounts, that one account was a checking account of the second wife, and that the other account was a joint savings account where the second wife put her savings from the salary she received from the defendant's store. Impropriety of lump-sum alimony was not urged.
On August 14, 1973, the trial court entered an order directing the defendant to pay $30.00 per week in child support and also directing the defendant "to deliver title to said automobile to Plaintiff." The plaintiff's motion for rehearing was denied "in all other respects." The plaintiff appeals from this order.
The plaintiff raised three contentions in this appeal; first, that the trial court "abused its discretion in the establishment of the just alimony and support award" and, therefore, this court can, and must, reverse same; secondly, that it was improper for the trial court to award alimony in gross in lieu of periodic alimony under the circumstances here present; and lastly, that the trial ...