David L. Rose v. Ruby F. Rose
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Rel: 04/01/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2081182 David L. Rose v. Ruby F. Rose Appeal from Calhoun C i r c u i t (DR-93-80.1) Court On A p p l i c a t i o n f o r R e h e a r i n g PITTMAN, Judge. The opinion following o f November 19, 2010,i s w i t h d r a w n , i ssubstituted therefor. and t h e 2081182 David L. Rose ("the judgment of the Calhoun for stopping payment benefits (referred benefits" or wife"), to former Circuit of to a the former share share on of the unmodifiable reverse The former division in part, and "the Ruby the husband's F. former w i f e p e t i t i o n e d the t r i a l alleging Rose ordered that the husband's ("the former to pay pursuant t r i a l court premised i t s former wife's benefits case court former award of constituted We with p a r t i e s were d i v o r c e d i n 1993. arrearage, former of m a r i t a l p r o p e r t y . remand t h i s i n contempt his military-retirement h u s b a n d was that a as herein i t s conclusion from of t h e p a r t i e s ' d i v o r c e j u d g m e n t . The decision appeals C o u r t h o l d i n g him " h i s b e n e f i t s " ) to which husband") affirm a an in part, instructions. In October 2008, t h e for a calculation husband had of stopped payment o f h e r a w a r d o f a s h a r e o f h i s b e n e f i t s , and a s k e d t h e t r i a l c o u r t t o h o l d the former husband i n contempt. The former h u s b a n d r e s p o n d e d , d e n y i n g t h e f o r m e r w i f e ' s c l a i m s , and a counterclaim former w i f e ' s wife responded for a modification award of a s h a r e i n opposition. 2 or termination o f h i s b e n e f i t s . The filed of the former 2081182 A f t e r h e a r i n g a r g u m e n t s and r e v i e w i n g b r i e f s each party former trial the former husband's marital for the that concluded at stopped benefits. The a to motion stay which motions to this an the of unmodifiable an i t held of a husband of the former w i f e ' s share filed the trial former periodic husband raises of h i s motion and court's order, thereafter one issue we affording timely appealed on appeal: p r o p e r t y or review the the trial any p r e s u m p t i o n Boudreau issue raised on whether constitutes whether, the former w i f e ' s award c o n s t i t u t e s court's decision. App. of m a r i t a l alimony. Because issue, divorced of i n contempt a postjudgment e x e c u t i o n of the division former w e r e b o t h d e n i e d ; he alternative, The of the husband unmodifiable division without court share former w i f e ' s award of a share of h i s b e n e f i t s legal Civ. award trial court. The the the the was payment former request, wife's benefits p r o p e r t y , and having judge's s u b m i t t e d by an appeal court's decision in award is a de novo of c o r r e c t n e s s to the trial v. S l a t o n , 9 So. 3d 4 9 5 , 498 (Ala. 2008). facts in of t h i s 1993, c a s e a r e n o t d i s p u t e d . When t h e the divorce 3 judgment parties identified, and 2081182 provided f o r the d i v i s i o n of, three "assets," including the former husband's b e n e f i t s ; the d i v i s i o n o f t h o s e " a s s e t s " was outlined parties, in incorporated "property would that an into agreement the judgment settlement." receive wife wife's which was and r e f e r r e d t o t h e r e i n as a of the former would c o s t - o f - l i v i n g increases former the The j u d g m e n t p r o v i d e d a 50% share the former of be entitled wife entitlement benefits, began she husband's party benefits, to one-half t o h i s b e n e f i t s would r e c e i v i n g payments listed each of any t o h i sb e n e f i t payments, and t h a t t h e s h e w e r e t o r e m a r r y o r d i e . The r e c o r d former that those reveals terminate i f that, of the former payments as income once t h e husband's on her t a x filings. In October Finance and responsible stop which 2008, t h e former husband c o n t a c t e d Accounting prompted contempt. ("DFAS"), the agency f o r i s s u i n g h i s b e n e f i t s , a n d i n s t r u c t e d DFAS t o i s s u i n g payments unissued Service the Defense t o the former the former wife wife. t o seek The DFAS complied, an a r r e a r a g e of the p a y m e n t s a n d a f i n d i n g t h a t t h e f o r m e r h u s b a n d was i n I n response, former wife's the former a w a r d , w h i c h he c l a i m e d 4 husband argued that the was a n a w a r d o f p e r i o d i c 2081182 alimony, s h o u l d be m o d i f i e d b a s e d on a c h a n g e i n o r be t e r m i n a t e d said, circumstances u n d e r A l a . Code 1 9 7 5 , § 3 0 - 2 - 5 5 , b e c a u s e , he the former wife was cohabiting with a member o f the opposite sex. The argue record i n d i c a t e s that the p a r t i e s submitted their former p o s i t i o n s as t o t h e p r o p e r wife's Additionally, award the record evidence at t r i a l whether former that the husband, the that that as p e r i o d i c a l i m o n y . husband's that court or terminate i n the event classification former reveals f o rthe t r i a l to modify award of briefs to o f the benefits. the parties adduced t o weigh i n determining award as u r g e d the t r i a l court The p a r t i e s by the classified s t i p u l a t e d that case d i dnot i n v o l v e the i s s u e whether t h e former w i f e had remarried under common law, which, i f proven, judgment invoked the provision of the divorce payment o f the former wife's cease upon r e m a r r i a g e . trial that opposite On court she had been erred cohabiting years the former i n concluding prior husband that 5 have stating that o f the benefits However, t h e f o r m e r w i f e sex f o r the f i v e appeal, share would with a should stipulated at member o f the to the t r i a l . asserts the former that wife's the trial award of a 2081182 share of his benefits property; he modifiable former contends award wife's judgment receipt wife property, which on Ex is a parte that retirement to property because, benefits is he under says, the her award unmodifiable form of Vaughn, a the divorce So. of i n gross. 533 or as alimony i n gross, Vaughn as former proposition may divided as be settlement, wife's argument b e n e f i t s may are equally available t o pay periodic alimony. 6 marital and stated pursuant her award erroneously that because property those b e n e f i t s a source of p e r i o d i c Although retirement she f o r the property used settlement; stands benefits relies have p r e v i o u s l y settlement a property marital ( A l a . 1993), as p r o p e r t y as former She 2d Alabama d e c i s i o n s the division alimony 634 of divided that unmodifiable an that be asserts benefits award wife's marital may classified The of benefits m u s t be retirement argues is argues t h a t , because be former alimony those division permanent. benefits which of former heavily the of periodic husband's cannot that i s not The a i s an u n m o d i f i a b l e in a necessarily alimony. oversimplifies the issue. be d i v i d e d a s p r o p e r t y , such as from a source Singleton v. of income Harp, 689 So. 2d 2081182 880, 882 So. 2d 709 So. ( A l a . C i v . App. 1246, 1251 2d 1259, ( A l a . C i v . App. 1261 Because there in the event alimony of i n gross division, the 1 9 9 6 ) ; see a as issue with the former as source of periodic or concede husband's subject to the divorce that benefits p u r s u a n t t o an is award takes Kenchel, 440 therein 2d subject 567, to faced 569 are to be Both to "assets" i n t o the d i v o r c e a "property that "the form or (Ala. Civ. a property gross parties former divided concede judgment settlement." substance label." App. as viewed the p a r t i e s ; they f u r t h e r as the three 1 of equitable marital refers the settled over as source i s whether, division). judgment incorporated i t is well a (whether alimony i n the precedence are as parties agreement of So. only benefits, or of 841 Strong, alimony one labeled Nonetheless, treated equitable as t h a t t h a t a g r e e m e n t was and S t r o n g v. husband's b e n e f i t s d i v i d e d among t h e property be w h i c h we matter, equitably Daniel, 1998). marital property legal a App. v. requirement that retirement divorce, or 2 0 0 2 ) , and (Ala. Civ. i s no also Daniel of Kenchel 1983); see the v. also U n d e r A l a b a m a c a s e l a w , an a w a r d o f a l i m o n y i n g r o s s i s c o n s i d e r e d t o be "a f o r m o f p r o p e r t y s e t t l e m e n t . " D a n i e l , 841 So. 2d a t 1250 ( c i t i n g Hager v. H a g e r , 293 A l a . 47, 54, 299 So. 2d 743, 749 (1974)). 1 7 2081182 K e l l e y v. S t a t e D e p ' t o f R e v e n u e , 796 C i v . App. 2000) the true consider its of nature the of obligation). the former is well settled requirements[:] must 1117 (Ala. on t h e q u e s t i o n o f Therefore, wife's be certain, that alimony (1) the (2) and time the vested.'" Daniel, 841 500 So. ( A l a . C i v . App. So. 2d estate 2d 17, at 18 1117. So. " I t must of the p a y i n g intended as inchoate marital 2d award also 841 division of the couple's jointly fruits 841 So. 2d at 299 So. 2d 743, On the other of the e s t a t e of of to we must determine to "'must and 1986)); the alimony out of [and] assets must the that estate exists for a t 1250. the ... i s not amount be Cheek, see a l s o K e l l e y , payable 2d satisfy ( q u o t i n g Cheek v. ( q u o t i n g Hager v. 749 payment right of the marriage owned 1250 be So. "'compensation rights i n gross a t 1250 s p o u s e as of the d i v o r c e . " D a n i e l , out 1114, classification. It two 2d ( l a b e l s are not c o n t r o l l i n g nature the So. may present at the S u c h an [recipient also spouse's] represent practicable.'" 293 time award i s where l i q u i d a t i o n Hager, 796 a of a Daniel, A l a . 47, 54, (1974)). hand, p e r i o d i c the paying 8 alimony spouse need as not be i t exists payable at the 2081182 time of the divorce. Civ. App. 2007). for the future subject 979 in Bray v. Bray, 979 S o . 2 d 7 9 8 , 801 A periodic-alimony support award " ' " i s an a l l o w a n c e of the [recipient spouse]"'" turn Hager, 293 A l a . a t 55, 299 So. 2d a t 7 5 0 ) . P e r i o d i c i s treated So. Adkins 3d income v. A d k i n s , [Ms. 2 0 8 0 7 4 4 , ( A l a . C i v . App. source current 588, as t a x a b l e , The of 591 ( A l a . C i v . App. from which to the party a spouse. 2003) payor January receiving the 22, 2010] payments must (holding spouse was that a However, "a t r i a l trial those current which court c o u r t may c o n s i d e r a party may has e v i d e n c e retirement accounts ( A l a . C i v . App. 2004). retirement be r e q u i r e d from which are being income t o t h e p a r t y . " the retirement not already c o u l d n o t be a s o u r c e o f p e r i o d i c - a l i m o n y from be S m i t h v . S m i t h , 866 S o . 2 d benefits source because 2010). periodic-alimony income o f t h e payor account 923 Bray, S o . 2 d a t 800 ( q u o t i n g D a n i e l , 841 S o . 2 d a t 1 2 5 0 , q u o t i n g award. the and i s t o m o d i f i c a t i o n o r t e r m i n a t i o n under § 30-2-55. alimony i s a l s o d i s t i n g u i s h a b l e from alimony i n gross it (Ala. drawing payments). a c c o u n t s as a t o pay alimony i f i tcan determine used as a source that of Stamm v . Stamm, 922 S o . 2 d 9 2 0 , Evidence 9 that a person has begun 2081182 drawing held sufficient source 168 retirement-benefits to e s t a b l i s h that of current income. Y o h e y , we h e l d such b e n e f i t s See Y o h e y v . Y o h e y , ( A l a . C i v . App. 2004); In from h i s or her account see a l s o that i n r e q u i r i n g a payor spouse for that Stamm, 922 S o . 2 d a t 9 2 4 . a trial court had acted to treat h i s retirement t h e draws from t h a t emergency purposes. that r e s u l t because Yohey, the t r i a l t e s t i m o n y and c o n c l u d e d t h a t as current Similarly, drawing income that f o r general court Our that living testified reached could benefits expenses. t h a t he h a d b e e n a c c o u n t , b u t he d i d n o t he h a d d r a w n have the benefits. We properly inferred living expenses. 922 S o . 2 d a t 9 2 4 . review of the record here the former husband's b e n e f i t s payment only c o u l d have d i s c r e d i t e d h i s t h a t he h a d d r a w n b e n e f i t s t o p a y f o r g e n e r a l Stamm, t h o u g h he h a d he h a d u s e d t h o s e d r a w n f o r which the t r i a l a c c o u n t as a c c o u n t h a d b e e n made from h i s r e t i r e m e n t the purpose concluded court pay properly 890 S o . 2 d a t 1 6 8 . We i n Stamm, a p a y o r s p o u s e benefits indicate to constitute a 890 S o . 2 d 1 6 0 , a s o u r c e from which t o pay p e r i o d i c a l i m o n y even testified has been of a periodic-alimony leads a r e a s o u r c e o f income f o r award. 10 us t o t h e c o n c l u s i o n I t i s undisputed that 2081182 payments are c u r r e n t l y being retirement issued account; payments discontinued record the a the issued former wife from that the at from the former account direction had the a l s o shows t h a t t h e f o r m e r w i f e that not the former be been d i v i d e d Additionally, unmodifiable gross, will division because are result, that 2-55 because See Ex P a r t e to a divorce vest and t h e t o t a l indefinite. i t was M u r p h y , 88 6 So. proceeding the agreement incorporated, loses The 2d property. of constitute or 796 So. into the 2d at divorce into an the judgment, i t s contractual 11 the nature in award 1117. pursuant ( A l a . 2003) entered an alimony will As to § a 30¬ judgment. ( i f parties agreement and r e q u e s t i n c o r p o r a t i o n o f a l l o r into the amount t h e f o r m e r w i f e 90 , 94 have former the former wife's modifiable incorporated to property, Kelley, award i s j u d i c i a l l y anticipation thereof, of See i f the of a share deemed both the time at which completely receive award be marital valid as m a r i t a l wife's cannot of has husband. -¬ would benefits former were of had husband's payments l i s t e d her share husband's b e n e f i t s former the been as i n c o m e i n h e r t a x f i l i n g s former husband's b e n e f i t s characterization been p r e v i o u s l y before of husband's agreement, insofar as in part i f the 2081182 right to trial court's The modify be an to be the the We concerned). judgment former former wife's to is husband award award case, of as to Therefore, 2 that further a share former wife's trial the i f indeed that his benefits the court is determined w h i c h we of p e r i o d i c alimony, then the reverse issue. contends of we have determined e r r e d by not a w a r d p u r s u a n t t o A l a . Code 1975, terminating § 30-2-55. agree. Alabama Code 1975, § 30-2-55, is clear: "Any [judgment] of divorce providing for p e r i o d i c p a y m e n t s o f a l i m o n y s h a l l be m o d i f i e d by the c o u r t to p r o v i d e f o r the t e r m i n a t i o n of such a l i m o n y upon p e t i t i o n of a p a r t y to the [divorce j u d g m e n t ] and p r o o f t h a t t h e s p o u s e r e c e i v i n g s u c h a l i m o n y has r e m a r r i e d o r t h a t s u c h s p o u s e i s l i v i n g A l t h o u g h i t i s u n d i s p u t e d t h a t the p a r t i e s ' s e t t l e m e n t a g r e e m e n t was i n c o r p o r a t e d i n t o the d i v o r c e judgment, we n e v e r t h e l e s s w o u l d have h e l d t h a t t h e f o r m e r w i f e ' s a w a r d i s a periodic-alimony award t h a t is judicially modifiable p u r s u a n t t o § 30-2-55 b e c a u s e h e r a w a r d i s c o n t i n g e n t on w h e t h e r she r e m a r r i e s . We r e j e c t t h e f o r m e r w i f e ' s a r g u m e n t t h a t t h i s c a s e f a l l s i n l i n e w i t h S t o c k b r i d g e v. R e e v e s , 640 So. 2d 947 ( A l a . C i v . App. 1 9 9 4 ) , and S i n g l e t o n v. H a r p , 689 So. 2d 800 ( A l a . C i v . App. 1 9 9 6 ) , c a s e s i n w h i c h t h i s c o u r t affirmed t r i a l court determinations that m i l i t a r y - r e t i r e m e n t b e n e f i t s had been d i v i d e d p u r s u a n t t o a p r o p e r t y s e t t l e m e n t . Those cases are s i g n i f i c a n t l y d i s t i n g u i s h a b l e from t h i s case because the award of a p o r t i o n of the m i l i t a r y - r e t i r e m e n t b e n e f i t s i n e a c h o f t h o s e c a s e s were n o t c o n t i n g e n t on w h e t h e r the r e c i p i e n t spouse r e m a r r i e d . 2 12 2081182 openly sex." (Emphasis or cohabiting added.) This with case a member i sdistinguishable common c a s e w h e r e c o h a b i t a t i o n a factual inquiry conflicting particular evidence Ex p a r t e that that a cohabitation going undisputed sexual inferences the s i f t i n g properly drawn a member of the opposite of from counsel f o ra factual issue inquiry into sex, which the issue i s , i n e f f e c t , no l o n g e r court trial cannot ignore court's determining that h a d e x i s t e d where t h e r e c i p i e n t spouse, testimony relations with, that to cohabiting, she had l i v e d h e r paramour (holding u n d i s p u t e d evidence," and judgment so f a r as t o s t i p u l a t e of i n dispute. W a r d , 782 S o . 2 d 1 2 8 5 , 1 2 8 8 ( A l a . 2 0 0 0 ) "[a] t r i a l reversing not with t h e need cohabitation; See upon upon and t h e former w i f e h e r s e l f a d m i t t e d , t h a t she had cohabiting obviates t h e more i s t o be d e t e r m i n e d b a s e d i s dependent and upon from items of evidence. Here, t h e former wife's stipulated, been that of the opposite with, f o r 12 no although had given and had had years). 3 Because the former w i f e s t i p u l a t e d t h a t she had been c o h a b i t i n g w i t h a member o f t h e o p p o s i t e s e x f o r t h e f i v e years preceding t r i a l , the record reveals undisputed evidence t h a t t h e f o r m e r w i f e was c o h a b i t i n g w i t h a member o f t h e o p p o s i t e s e x . Thus, any f a c t u a l i n q u i r y into the array of f a c t o r s t h a t a t r i a l c o u r t may t y p i c a l l y w e i g h i n d e t e r m i n i n g w h e t h e r c o h a b i t a t i o n e x i s t s w o u l d be u s e l e s s b e c a u s e o f t h e 3 13 2081182 Because of the former alimony, enforce we determined husband's must that benefits remand this the former i s an case wife's admission, her behalf, that to Russell, 586 S o . 2 d 1 2 , 13 trial that the the [recipient c o u r t has t h e duty remand, the undisputed trial facts (although a terminate of p e r i o d i c court to a payor paid after member of this spouse should case. the date "thet r i a l Russell apply See Ward, such § v. ... or i s l i v i n g of the opposite sex,the alimony."). 30-2-55 On to the 782 S o . 2 d a t 1 2 8 8 i s not e n t i t l e d to a refund f o r spouse began c o h a b i t i n g w i t h sex, alimony on w h i c h court i s A p p . 1 9 9 1 ) ("Upon has r e m a r r i e d a member a member o f alimony." (Ala. C i v . the recipient of the opposite mature past periodic ... t o t e r m i n a t e court stipulation cohabiting with spouse] or cohabiting with alimony award and h e r c o u n s e l ' s she has been required openly award the t r i a l to the o p p o s i t e sex, under which circumstance proof wife's " t h e m a n d a t e o f [ A l a . Code 1975,] § 3 0 - 2 - 5 5 , " i n l i g h t of t h e former on we h a v e ceases to accrue or c o h a b i t a t i o n began). undisputed evidence establishing cohabitation; any d e t e r m i n a t i o n on t h e r e c o r d t h a t the former w i f e had not c o h a b i t e d w o u l d be p l a i n l y w r o n g . See Ward, 782 So. 2d a t 1288 (holding that a t r i a l court's determination that cohabitation d i d not e x i s t , i n d i r e c t c o n t r a d i c t i o n of the r e c i p i e n t s p o u s e ' s a d m i s s i o n s , was e r r o r ) . 14 2081182 We note, correct begins, although that that j u d i c i a l a commenced where undertaken. the though the that the former benefits was statutorily determined, contacting the time trial as i t d i d , wife's husband award subject that the former t h e DFAS a n d t e r m i n a t i n g of to could a r e due cohabitation proceedings former court that have has a has been correctly share of h i s modification have or nevertheless husband's t h e payments conduct i n unilaterally was n o t t h e a p p r o p r i a t e means o f e f f e c t u a t i n g § 3 0 - 2 - 5 5 . Scott 3d v. Scott, 38 So. 7 9, 86-87 (Ala. C i v . App. (discussing alternatives to u n i l a t e r a l l y terminating alimony payments believes that should he o r s h e s h o u l d be u t i l i z e d no l o n g e r be o b l i g a t e d absent t o t h e sound d i s c r e t i o n an a b u s e of that discretion 15 2009) spouse t o make such of contempt a r e of the t r i a l or unless See periodic- when a p a y o r p a y m e n t s ) . We f u r t h e r n o t e t h a t d e t e r m i n a t i o n s "'committed to cohabitation benefits that modification contended termination, i s required as o f t h e t i m e t o pay alimony after no Even court husband i s d u t y does n o t r e n d e r e r r o n e o u s a f i n d i n g for failure judgment the former the t r i a l payment o f h i s b e n e f i t s contempt under that i n his assertion terminate of however, court, and, t h e judgment o f 2081182 the trial plainly 922 court i s unsupported and p a l p a b l y wrong, S o . 2 d a t 924 (Ala. C i v . App. judgment under this (quoting Stack 1994)). review APPLICATION by For the evidence court w i l l v. S t a c k , that GRANTED; OPINION affirm.'" OF Stamm, 646 S o . 2 d 5 1 , 56 reason, as t o t h e c o n t e m p t s o a s t o be we affirm the finding. NOVEMBER 19, 2010, WITHDRAWN; O P I N I O N S U B S T I T U T E D ; A F F I R M E D I N PART; REVERSED PART; AND REMANDED WITH INSTRUCTIONS. Thompson, P . J . , and B r y a n , Thomas, J . , concurs and Moore, i n the r e s u l t , 16 J J . , concur. without writing. IN
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