Opinion
Civ. 595.
November 19, 1975.
Appeal from the Circuit Court, Covington County, F. M. Smith, J.
James M. Prestwood, Andalusia, for appellant.
Where the trial court vests exclusive possession in the home and certain real estate surrounding the home to the wife in a divorce action, its judgment is void for reason of vagueness and uncertainty when neither the boundaries nor the quantum of the land is stated. Sims v. Sims, 263 Ala. 206, 82 So.2d 258; Gandy v. Hagler, 245 Ala. 167, 16 So.2d 305.
W. H. Baldwin, Andalusia, for appellee.
In a divorce case where the evidence is heard ore tenus by the trial court, its findings are presumed correct and will not be overturned without showing of an abuse of discretion. Roberts v. Roberts, 284 Ala. 55, 22l So.2d 915; Chancellor v. Chancellor, 52 Ala. App. 10, 238 So.2d 794.
This is an appeal from a decree divorcing the parties herein. Appellant, the wife, seeks reversal because the decree does not designate with sufficient certainty the real property she is to receive. We agree.
The decree, after granting a divorce for incompatibility of temperament between the parties, made the following order:
"It is further CONSIDERED, ORDERED, ADJUDGED AND DECREED by the court that the plaintiff be and is hereby awarded the exclusive possession of the home of the parties located at Wing, Alabama, together with so much of the land as has been used for yard and garden for the remainder of her life."
A judgment should be complete and certain in itself. Gandy v. Hagler, 245 Ala. 167, 16 So.2d 305. We have examined the pleadings and testimony in the court below and find nothing therein to delineate the boundary of the yard and garden. Although it is possible that the parties know of and could agree on the current size of the plot, the court's decree should not leave such matters uncertain. In light of fact that this home is located within a tract of land which has been and will continue to be farmed by the husband, the size of the yard and garden may have varied over the years. As it stands, the order is not sufficiently certain to define the wife's right of possession, nor would it afford her protection were a third party to enter the picture.
No appeal has been taken from other aspects of the decree. The uncertain portion of the order can be made certain without disturbing the remainder of the decree by the taking of further testimony concerning the size of the yard and garden.
We therefore affirm the decree except for the part granting the home to plaintiff for life. We reverse that part of the decree only because of its uncertainty of description and remand to the trial court with direction to describe the property so that it may be located on the ground.
Affirmed in part, remanded in part with direction.
BRADLEY and HOLMES, JJ., concur.