Brattmiller v. Brattmiller

• Decision Date: 01 June 2007
• Docket Number: 2050120.
• Citation: 975 So.2d 359
• Parties: Todd Irvin BRATTMILLER v. Susan Beth BRATTMILLER Susan Beth Brattmiller v. Todd Irvin Brattmiller.
• Court: Alabama Court of Civil Appeals

975 So.2d 359

Todd Irvin BRATTMILLER v. Susan Beth BRATTMILLER

Susan Beth Brattmiller v. Todd Irvin Brattmiller.

2050120.

Court of Civil Appeals of Alabama.

June 1, 2007.

Robert H. Brogden, Ozark, for appellant/cross-appellee Todd Irvin Brattmiller.

J.E. Sawyer, Jr., Enterprise, for appellee/cross-appellant Susan Beth Brattmiller.

PER CURIAM.

Todd Irvin Brattmiller ("the husband") appeals from a divorce judgment that, among other things, awarded Susan Beth Brattmiller ("the wife") a portion of his military retirement benefits. The wife cross-appeals and asserts that the trial court erred in awarding the husband primary physical custody of the parties' two minor children.

The parties were married on December 27, 1986, one month after the husband had entered military service in the United States Army. Two daughters were born to the parties, one in 1989 and one in 1991. Throughout the marriage, the husband had advanced in his Army career by attending officer-candidate school and, eventually, by being commissioned as an officer in May 1995. At the time of trial, the husband was classified as a captain and would be eligible to retire in November 2006.

In July 2003, the husband filed a complaint seeking a divorce on the grounds of incompatibility and an irretrievable breakdown of the marriage; in that complaint, among other things, the husband sought primary custody of the parties' two minor children. The wife filed an answer contesting that the husband should be awarded physical custody of the children and a counterclaim seeking, among other things, a divorce and an award of custody of the children.

Following numerous delays, the trial court conducted an ore tenus proceeding on February 22, 2005. During that proceeding, both of the parties and the parties' two daughters testified. The vast majority of the evidence adduced at trial related to the child-custody dispute between the parties. The wife asserted that she had been the children's primary caregiver because, she said, the husband had been too busy pursuing his military career. However, the evidence indicates that at different times during the marriage the wife had abused alcohol; the evidence also established that the wife had completed a rehabilitation program and had been alcohol-free since August 2003.

The husband testified that the wife had been a hindrance to his career and that he did not want the parties' children to be subjected to any possible renewed abuse of alcohol by the wife in the future. The parties' older daughter, who was 15 years old at the time of trial, testified that during the period when the husband had been overseas on assignment, the wife had been verbally abusive to the children while she was drunk. The older daughter testified that the wife's drinking habits had strained the mother-child relationship and that she would prefer to live with the husband. The parties' younger daughter, who was 13 years old at the time of trial, testified that she loved both of her parents but that she wanted to live with the wife; she also stated her belief that, by living with the wife, her presence would help deter the wife from abusing alcohol in the future. In addition, the younger daughter noted that she did not "get along" with her older sister.

The husband testified that the wife had not been of any assistance with respect to his Army career and opined that she was not entitled to an award of any portion of his military retirement benefits for that reason. He also insisted that he was the more stable parent of the two parties, that he could ensure that he would continue to be stationed in Alabama until his retirement in November 2006, and that he should therefore be awarded custody of the parties' minor children.

The trial court entered a divorce judgment on July 7, 2005. That judgment awarded the husband primary physical custody of both children, awarded the wife standard visitation with the children, and ordered the wife to pay monthly child support in the amount of $284. The judgment awarded the marital residence and its contents to the husband, provided that the husband pay the wife 50% of the equity in the marital residence within 60 days of the entry of the judgment; otherwise, the husband was charged with selling the property and sharing equally with the wife any proceeds remaining after all related costs had been paid.

As part of the marital-property division, the judgment ordered the husband to pay the wife $500 per month in periodic alimony for 60 consecutive months. In addition, the judgment ordered the husband to pay the wife 45% of "his military retirement [benefits] when the [husband] retires and begins receiving his retirement pay."

The husband filed a postjudgment motion challenging the award of military retirement benefits, and the wife filed a postjudgment motion challenging the child-custody award. Both motions were denied by operation of law. See Rule 59.1, Ala. R. Civ. P.

The husband contends that the trial court erred in awarding the wife a portion of his retirement benefits because the wife failed to introduce any evidence tending to establish the present value of those benefits. As a general matter, a trial court, as a component of a divorce judgment, may order an allowance to one spouse out of the other spouse's estate when such an award is warranted. See Ala.Code 1975, § 30-2-51(a). In contrast, Ala.Code 1975, § 30-2-51(b), which was added in 1995 and upon which the husband bases his argument, authorizes a court granting a divorce to apportion as a marital asset "the present value of any future or current retirement benefits [ ] that a spouse may have a vested interest in or may be receiving on 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 to one spouse of a portion of the other spouse's retirement benefits pursuant to § 30-2-51(b), the spouse seeking such an award must introduce evidence establishing the "present value" of the retirement benefits. Moreover, this court stated that "'[t]he failure to present the necessary evidence of the present valuation of retirement benefits . . . prevents the trial court from exercising its . . . discretion to award one spouse any portion of the retirement benefits of the other spouse. McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App. 2002).'" Wilson, 941 So.2d at 970 (quoting Applegate, 863 So.2d at 1124). Reversing the awards of retirement benefits in Wilson, Applegate, and McAlpine, this court remanded those cases with instructions for the pertinent trial courts to amend their judgments to eliminate the awards of retirement benefits and to reconsider divisions of marital assets on the basis of evidence that had already been introduced at trial.

Accordingly, in the case now before us, the award to the wife of a portion of the husband's retirement benefits was erroneous because the wife did not introduce any evidence establishing the present value of the husband's retirement benefits. We therefore reverse the trial court's judgment insofar as it awarded the wife a portion of the husband's retirement benefits and remand the case with instructions to the trial court to amend the judgment to eliminate the award to the wife of a portion of the husband's retirement benefits. See Wilson, Applegate, and McAlpine. In addition, because the award to the wife of a portion of the husband's retirement benefits was a significant part of the trial court's allocation of marital property to the wife, we reverse the trial court's division of the marital property in its entirety so that, on remand, the trial court can reconsider its division of the marital property in light of our holding that it cannot award the wife any portion of the husband's retirement benefits. Moreover, because the award of periodic alimony is interrelated with the division of marital property, see Courtright v. Courtright, 757 So.2d 453, 456 (Ala.Civ.App.2000), we also reverse the trial court's award of periodic alimony, so that, on remand, the trial court can reconsider its award of periodic alimony in conjunction with its reconsideration of its division of marital property.

The wife's cross-appeal challenges the trial court's award of primary physical custody of the parties' two children to the husband because, she claims, the evidence did not establish that she was unfit to have custody of the children. The wife misconstrues the proper standard to be applied in this case; in an original divorce action, the parties stand on an equal footing and no presumption of entitlement to custody inures to either parent. See Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998). The trial court's paramount concern, and the correct standard for it to apply in making an initial child-custody determination, is the best interests and welfare of the children at issue. See Ex parte Couch, 521 So.2d 987, 989 (Ala. 1988); see also C.B.B. v. J.S.D., 831 So.2d 620, 621 (Ala.Civ.App.2002).

In this case, the trial court received evidence during an ore tenus proceeding concerning the custody issue; thus, our review of that award is limited. The ore tenus rule, under which we indulge a presumption of correctness in reviewing a trial court's judgment after receiving oral testimony, is based, in part, on the unique position of the trial court to personally observe the parties and witnesses and to assess their demeanor and credibility. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001). Additionally, "'[i]n child custody cases especially, the perception of an attentive trial judge is of great importance.'" Id. at 633 (quoting Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ. App.1981)). In this case, although the trial court did not state any factual findings before awarding physical...