Hendrix v. Jelusich

• Decision Date: 17 November 1995
• Citation: 679 So.2d 1062
• Parties: James L. (Luther) HENDRIX v. Kathryn Mitchell JELUSICH. 2940610.
• Court: Alabama Court of Civil Appeals

Page 1062

679 So.2d 1062

James L. (Luther) HENDRIX v.Kathryn Mitchell JELUSICH.

2940610.

Court of Civil Appeals of Alabama.

Nov. 17, 1995.

Rehearing Denied Jan. 5, 1996.

Certiorari Quashed Aug. 30, 1996

Alabama Supreme Court 1950612.

Ralph K. Strawn, Jr. of Henslee, Robertson & Strawn, L.L.C., Gadsden, for appellant.

Gary W. Lackey, Scottsboro, for appellee.

ROBERTSON, Presiding Judge.

This is the second time that these parties, James L. Hendrix and Kathryn Mitchell Jelusich, have been before this court.SeeHendrix v. Hendrix, 606 So.2d 142(Ala.Civ.App.1992).

In 1986, while the parties were married, the husband, James L. Hendrix, retired from the United States Civil Service.Upon his retirement, he qualified for Civil Service retirement benefits under 5 U.S.C. § 8331, et seq.The provisions of 5 U.S.C. § 8331, et seq., provide that an employee who retires from the Civil Service is entitled to an annuity.However, under 5 U.S.C. § 8342, an employee or member of the Civil Service who meets certain conditions and files an application with the Office of Personnel Management is entitled to a lump sum credit in lieu of an annuity.5 U.S.C. § 8342(a);see alsoMiller v. Office of Personnel Management, MSPB, 1990, 45 M.S.P.R. 122.A lump sum credit is a lump sum payment equal to the amount the retiring employee or member contributed plus the applicable interest.5 U.S.C. § 8331.

When he retired in 1986, the husband did not apply for a lump sum payment under 5 U.S.C. § 8342, instead, he entered into an annuity agreement which gave him a monthly annuity and a survivor annuity for his spouse.If the husband had decided not to receive an annuity, he could have received a lump sum payment of $110,413.74.However, the husband did not file to receive a lump sum payment when he retired in 1986, and his receipt of the annuity payments terminated his option to receive a lump sum payment.SeeAlternative Forms of Annuities, 5 C.F.R. § 831.2203(e)(1987).

In 1991, after having been married for over forty years, the wife, Kathryn Mitchell Jelusich, filed for divorce in the Jackson County Circuit Court.During the divorce proceedings, the husband informed the trial court that he received a $2500 monthly annuity payment from the Civil Service; however, he did not reveal that he had had an option to elect a lump sum payment instead of the annuity when he retired in 1986.The receipt of this $2500 monthly retirement income was noted by this court in Hendrix.

The resulting divorce judgment awarded the wife approximately $140,000 in real and personal property; alimony in gross of $130,000, to be paid in 60 monthly payments of $700 plus a lump sum payment of $88,000 due on April 1, 1996; and periodic alimony of $500 per month.The trial court also ordered the husband to pay some of the wife's debts and the costs of the divorce.See Hendrix.On appeal, this court affirmed the judgment of the trial court, holding that there was no abuse of discretion in the distribution of the marital assets.Id.

On April 29, 1994, the wife filed a complaint in the DeKalb County Circuit Court attacking the divorce judgment.The complaint specifically alleged that the husband had committed fraud by failing to inform the court that he had elected to receive an annuity rather than a lump sum payment when he retired from the Civil Service in 1986.The wife sought, among other things, to modify the division of property under a judgment that had been final since 1991.

At the conclusion of an ore tenus proceeding, the trial court ruled in favor of the wife, stating that the husband's opportunity to receive a lump sum payment from the Civil Service "[was an asset] that should have been disclosed for the Court to consider" during the divorce proceedings.The trial court subsequently entered a judgment, awarding the wife $55,000.

The husband appeals, raising two issues: (1) whether his failure to inform the court of his option to file for a lump sum payment from the Civil Service constituted fraud, and (2) whether the doctrine of res judicata barred the trial court from litigating the case.Because we find no fraud in this case, we do not address the issue of...