Opinion
Civ. 141.
February 28, 1973.
Appeal from the Morgan County Court, in Equity, C. Bennett McRae, J.
Miles T. Powell, Decatur, for appellant.
Past due alimony installment payments become debt of record, a vested estate of the wife, beyond the power of the court to destroy. Epps v. Epps, 218 Ala. 667, 120 So. 150; Whitt v. Whitt, 276 Ala. 685, 166 So.2d 413; Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825. An agreement of the parties fixing the amount of alimony becomes merged into the decree and loses its contractual nature to the extent that the Court has power to modify decree when changed conditions so justify. Trial Court cannot relieve the husband of paying alimony installments which mature after remarriage of wife and before action on petition for modification. Supra.
Powell Powell, Decatur, for appellee.
Ruling of trial court denying petition for rehearing cannot be reviewed by appeal or mandamus. The only time that the trial court's ruling on a petition for rehearing can be reviewed is where the trial court modifies the original decree. Brassell v. Brassell, 46 Ala. App. 683, 248 So.2d 581. Rehearings in equity rest in the sound discretion of the chancellor, and, when the discretion is exercised, his decision is not revisable either on appeal or by mandamus. Smith v. Southeastern Real Estate Corp. et al., 273 Ala. 315, 139 So.2d 590. The law is settled that the granting or denial of a rehearing on petition filed during the term at which the decree was rendered is a matter within the unrevisable discretion of the court in equity proceedings. Van Schaick v. Goodwyn, 230 Ala. 687, 163 So. 327. Decree setting aside final decree is not a modification of decree such as would support appeal since cause is restored to the docket, and after another hearing the court may again reach the conclusion it did in the original decree. Smith v. Southeastern Real Estate Corp. et al., 273 Ala. 315, 139 So.2d 590. Equity Rule 62 only authorizes, and that inferentially, an appeal from an order which modifies the decree, not including one which sets the decree aside. Linn v. Linn, 242 Ala. 688, 8 So.2d 187.
This is an appeal from a decree of the Morgan County Court granting a rehearing in a suit in equity, together with an alternative motion for mandamus.
The parties were divorced in Morgan County in 1964. An agreement between the parties was incorporated in the court's decree. The original divorce decree, among other provisions, required the appellee-husband to pay to appellant-wife (who brings this action by and through her guardian) the sum of $500 per month as alimony. This sum was to be paid until appellant remarried.
The appellant, through her guardian, in 1971, filed a petition in equity alleging that appellee was in arrears in his alimony payments and that he should be held in contempt.
A lengthy hearing was held on appellant's petition and thereafter a final decree was entered by the trial court finding that appellee was in contempt and in arrears in alimony payments in the amount of $26,000.
Thereafter, appellee made a timely motion for rehearing which the court granted. It is from this order that appellant appeals to this court.
Appellant's assignments of error are:
1. "The Court erred in its Order granting a re-hearing to the Appellee, dated September 5, 1972 (Tr. 236)."
2. "For that the Court abused its discretion in granting the Appellee a re-hearing in its Order dated September 5, 1972 (Tr. 236)."
Appellant, while perhaps conceding that an appeal would not lie, in her able brief attempts to rely on the case of Grigsby v. Liles, 274 Ala. 67, 147 So.2d 846, for the proposition that mandamus is an appropriate remedy in this case in that the trial court, in granting a rehearing and vacating its judgment, abused its discretion or was plainly and palpably wrong. The Grigsby case, supra, is not applicable in this instance as Grigsby was a case at law and not equity.
The Supreme Court of Alabama, in Smith v. Southeastern Real Estate Corp., 273 Ala. 315, 139 So.2d 590, stated that in cases seeking to review by appeal the action of the trial court upon a motion for a rehearing, in consonance with the provision of Equity Rule 62, no appeal will lie from an order or decree in equity granting or overruling a motion for rehearing, unless it modifies the decree. See Van Schaick v. Goodwyn, 230 Ala. 687, 163 So. 327; Linn v. Linn, 242 Ala. 688, 8 So.2d 187; Scott v. Scott, 247 Ala. 266, 24 So.2d 25; Spurling v. Spurling, 250 Ala. 612, 35 So.2d 502; Rudolph v. Rudolph, 251 Ala. 317, 36 So.2d 902. In all of the above cases the appeals were dismissed. In Linn v. Linn and Scott v. Scott, supra, the supreme court specifically held that a decree setting aside a final decree was not a modification within Equity Rule 62. Therefore, it is clear that in this instance, appeal would not lie from the trial court's action granting the motion for a rehearing. See also Williams v. Evans, 286 Ala. 20, 236 So.2d 680; Carroll v. Carroll, 46 Ala. App. 131, 239 So.2d 203.
The Supreme Court of Alabama, in Ex parte Gresham, 82 Ala. 359, 363, 2 So. 486, 488, in denying mandamus, stated that "Rehearings, in equity, rest in the sound discretion of the chancellor, and, when the discretion is exercised, his decision is not revisable, either on appeal, or by mandamus." See Smith v. Southeastern, supra; Ex parte Upchurch, 215 Ala. 610, 112 So. 202.
The trial court's action in this instance, in setting aside its decree, is not final. The court, by its order, returned the cause to the docket and specifically set the matter for trial at a future date. After another hearing it may well be that the court may again reach the conclusion it did in its original decree.
It, therefore, necessarily is our conclusion that the appeal must be dismissed and the mandamus denied. So ordered.
Appeal dismissed. Mandamus denied.
WRIGHT, P. J., and BRADLEY, J., concur.