Applegate v. Applegate
| Decision Date | 09 May 2003 |
| Citation | 863 So.2d 1123 |
| Parties | Russell Joe APPLEGATE v. Phyllis Jean APPLEGATE. |
| Court | Alabama Court of Civil Appeals |
Byrd R. Latham and Claire Tinney Jones of Patton, Latham, Legge & Cole, Athens, for appellant.
James D. Moffatt, Athens, for appellee.
Russell Joe Applegate ("the husband") and Phyllis Jean Applegate ("the wife") were married in 1985. In September 2001, the wife sued for a divorce, left the marital residence, and returned to her home state of Kansas. Before leaving, the wife withdrew approximately $13,500 from the parties' joint account. She also took with her a large part of the parties' household items, including furniture, cookware, silverware, and dishes from the marital residence; she took some items to Kansas and stored others in a storage facility in Alabama.
After a trial, the trial court awarded the wife all the moneys in her possession, one-half of the proceeds from the ordered sale of the marital residence, her 1989 Lincoln Town Car automobile, one-half of the family photographs, and all the household items the wife took with her or placed in storage when she left the marital residence. The judgment awarded the husband the moneys in his possession, one-half the proceeds of the ordered sale of the marital residence, his 1999 Nissan Pathfinder sport utility vehicle, his 2002 Honda Gold Wing motorcycle, one-half of the family photographs, and any personal property in his possession. The trial court also awarded the wife 23% of the husband's retirement benefits. The husband is employed at United States Army Missile Command; he had been employed there for approximately 11 years before the parties married. His retirement benefit is calculated based upon his highest salary for the three consecutive years prior to retirement. The record reveals that the husband's estimated monthly retirement benefit, had he retired effective December 31, 2002, would be $4,670. The provision of the judgment awarding the retirement benefits to the wife reads, in pertinent part:
The husband appeals. He argues that the division of property was inequitable and that the trial court erred by awarding the wife 23% of his retirement. We reverse the trial court's judgment.
The husband argues that the trial court's award of retirement benefits is impermissible under Ala.Code 1975, § 30-2-51(b), because the wife did not present evidence as to the present value of retirement benefits subject to division, because the award includes benefits earned prior to the marriage of the parties, and because the award fixes the time for determining the amount of benefits as the date of the judgment and not the date of the filing of the complaint for divorce. Section 30-2-51(b) states:
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Wilkinson v. Wilkinson
...has led me to reexamine this court's opinions in McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App.2002), and in Applegate v. Applegate, 863 So.2d 1123 (Ala.Civ.App. 2003). Some of the statements in those opinions suggest that a trial court must always calculate the present value of retireme......
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Brattmiller v. Brattmiller
...the date the action for divorce is filed" (emphasis added).1 In Wilson v. Wilson, 941 So.2d 967 (Ala.Civ.App.2005); Applegate v. Applegate, 863 So.2d 1123 (Ala.Civ.App.2003); and McAlpine v. McAlpine, 865 So.2d 438, 440 (Ala.Civ.App.2002), this court held that, in order to support an award ......
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CAMPBELL v. CAMPBELL
...attributable to those premarital benefits. See DuBois v. DuBois, 714 So.2d 308, 310 (Ala. Civ.App.1998). In Applegate v. Applegate, 863 So.2d 1123 (Ala.Civ.App.2003), Mr. Applegate began accruing retirement benefits in 1974. In 1985, he married Mrs. Applegate, who later filed for a divorce ......
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Capone v. Capone
...because there was no evidence of the amount of benefits accumulated during the parties' marriage); see also Applegate v. Applegate, 863 So.2d 1123, 1124 (Ala.Civ.App. 2003) (stating that a trial court has no discretion to award retirement benefits if there is no evidence of the present valu......
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§ 7.10 Pensions
...been married for ten years while the spouse was working). See: M.S.M. v. M.W.M., 72 So.3d 626 (Ala. App. 2011); Applegate v. Applegate, 863 So.2d 1123 (Ala. App. 2003); Smith v. Smith, 836 So.2d 893 (Ala. App. 2002). Arkansas: Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Durham v. Dur......