Court: Supreme Court of Alabama; October 13, 2006; Alabama; State Supreme Court
Justice See dissents from the no-opinion affirmance regarding the case of Raymond Bruce Hurston, Jr. and Shir-lene Brock, who owned property as joint tenants with right of survivorship. Following their divorce, they entered into a property settlement agreement, after which Hurston mortgaged the property. Upon Hurston's death, American General Finance sought a declaratory judgment to confirm the validity of its mortgage, contending that the divorce settlement severed the joint tenancy.
The determination of whether a joint tenancy has been severed hinges on the intention of the parties as expressed in the settlement agreement. Citing precedents, Justice See references *Fitts v. Stokes*, where the agreement indicated a clear intent to sever the joint tenancy, as well as *Watford v. Hale*, which similarly found an intent to destroy joint tenancy due to the property settlement terms. The dissent argues that while divorce alone does not sever joint tenancies, it creates a presumption of intent to sever unless proven otherwise.
Justice See asserts that in this case, both Hurston’s estate and Brock have demonstrated sufficient evidence of their intent to sever the joint tenancy. The combination of the divorce judgment and the property settlement’s terms indicates a collective intention to sever the joint tenancy. The dissent distinguishes this case from *Porter v. Porter*, where the agreement did not reflect an intent to sever, highlighting the importance of examining the overall circumstances and intentions in such property settlements.
The Court determined that a temporary division of property held by joint tenants, without intent to partition, does not sever the joint tenancy. In the case of Mary Jane Porter, her exclusive occupancy did not sever the joint tenancy, as the trial court retained jurisdiction to modify or terminate it, indicating the division was temporary. In contrast, the current case lacks such jurisdiction, and the terms of the settlement agreement between Hurston and Brock demonstrate a clear intent to sever their joint tenancy with right of survivorship. The agreement stipulated that proceeds from a future sale of the property would be divided equally, while Hurston would have exclusive rights to reside and control the property until that sale. This situation parallels the case of Kirven v. Reynolds, where a settlement agreement post-divorce reflected an intention to sever the joint tenancy. The absence of retained jurisdiction in the current trial court further supports the conclusion that Hurston and Brock intended to sever their joint tenancy. Thus, the dissenting view emphasizes that the intent to sever is evident in their settlement agreement.
