McAlpine v. McAlpine

• Decision Date: 15 November 2002
• Citation: 865 So.2d 438
• Parties: Carnell McALPINE v. Jessue Brown McALPINE.
• Court: Alabama Court of Civil Appeals

865 So.2d 438

Carnell McALPINE v. Jessue Brown McALPINE.

2010352.

Court of Civil Appeals of Alabama.

November 15, 2002.

Rehearing Denied February 7, 2003.

Certiorari Denied May 16, 2003.

J. Cliff Heard of Benkwith & Heard, P.C., Montgomery, for appellant.

Pam Gooden Cook, Montgomery, for appellee.

Alabama Supreme Court 1020879.

PER CURIAM.

On December 10, 2001, the trial court divorced Carnell McAlpine ("the husband") and Jessue Brown McAlpine ("the wife"). The husband appeals from the trial court's award of a portion of his monthly retirement benefits and periodic alimony to the wife, and its order that he provide the parties' minor son a vehicle and that he pay three-fourths of the son's college expenses. We affirm in part, reverse in part, and remand.

I. Retirement Benefits

The husband first argues that the trial court's award of a portion of his retirement benefits to the wife was erroneous because, he says, (1) it includes benefits that accrued before the parties' marriage and that will accrue after their divorce; and (2) the wife failed to introduce sufficient evidence to support an award of retirement benefits under § 30-2-51(b), Ala.Code 1975.

When the husband filed his petition for divorce on March 2, 2001, he was a federalgovernment employee. He had been a federal employee since March 1977, before the parties married in December 1977. During the nine years before the husband filed his petition for divorce, his yearly salary had approximately doubled. At trial, the wife's counsel offered a document, which was admitted over the objection of the husband's counsel, showing that as of January 14, 2001, the husband's estimated retirement benefit, if he retired at age 55, was $3,417 per month; at the time of trial, the husband was 47. The amount the husband is eligible to receive as a monthly retirement benefit is calculated by using his highest salary for three consecutive years.

The trial court initially entered a final divorce judgment on October 3, 2001; however, on December 6, 2001, after conducting a hearing on the parties' postjudgment motions, it entered an order that amended certain portions of the judgment. The trial court's amended order, as it related to the husband's retirement benefits, stated:

"17. The Wife has a current retirement through the school system, with the present value being approximately $27,701.00. The Husband has a retirement fund presently worth approximately $66,000.00; which leaves the Husband with $38,000.00 more than the Wife has currently in retirement. The Husband, Carnell McAlpine, will be eligible for retirement benefits under the Civil Service Retirement System based on employment with the United States Government. The Wife, Jessue Brown McAlpine, is entitled to twenty-one (21%) percent of Carnell McAlpine's gross monthly annuity under the Civil Service Retirement System. The United States Office of Personnel Management is directed to pay the Wife's share directly to Jessue Brown McAlpine."

Section 30-2-51(b), Ala.Code 1975, which governs the award of retirement benefits, states:

"(b) The judge, at his or her discretion, may include in the estate of either spouse 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, provided that the following conditions are met:

"(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.

"(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.

"(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court."

In construing this section, this court has stated:

"A reading of § 30-2-51(b) indicates that a trial judge has the discretion to divide a spouse's retirement benefits if either of two conditions exists at the time the complaint for divorce is filed: a spouse must have a vested interest in or be receiving retirement benefits. Section 30-2-51(b) then states that the trial judge's discretion to divide retirement benefits is further limited by three additional conditions: the 10-year marriage rule of subsection (1); the post-nuptial acquisition-of-benefits rule of subsection (2); and the 50-percent division rule of subsection (3). The apparent meaning of these provisions, when read as a whole, is that the trial judge may divide the value of any retirement benefits in which one spouse has a vested interest or is receiving on the date the action for divorce is filed, provided that the parties have been married for ten years as of that date, that the judge divides only those retirement benefits acquired during the marriage, and that the judge awards the noncovered spouse no more than 50 percent of the benefits that may be considered by the court."

Smith v. Smith, 836 So.2d 893, 899-900 (Ala.Civ.App.2002).

From our review of the record, we cannot determine the method by which the trial court made its calculation in awarding the wife 21 percent of the husband's retirement benefits and whether that award would necessarily comply with § 30-2-51(b). In any event, the trial court's order awards the wife a percentage of the future value of the husband's retirement benefits, not its present value, which violates § 30-2-51(b). Furthermore, the wife failed to present sufficient evidence to support an award of any portion of the husband's retirement benefits.¹ The $66,000 figure listed in the trial court's order was not represented at trial to be the present value of the husband's retirement, but was rather the amount he had contributed to his retirement plan during the course of his employment with the federal government. The husband's retirement benefit was not to be based upon his contributions, but based upon his highest salary received for three consecutive years. The wife also failed to offer any evidence to show what portion of his retirement earnings the husband had earned before the parties' marriage. Accordingly, the trial court had no discretion to award any portion of the husband's retirement benefits to the wife. Its judgment is due to be reversed and this cause is remanded for the trial court to amend its judgment so as to not award the wife any portion of the husband's retirement benefits.

II. Alimony

The husband next argues that the trial court erred in awarding periodic alimony to the wife because (1) the wife did not establish a need for support, and (2) the periodic alimony awarded is beyond the husband's ability to pay. Our supreme court has observed:

"The standard appellate courts apply in reviewing a trial court's judgment awarding alimony and dividing property is well established:

"`A trial court's determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993). Moreover, issues of alimony and property division must be considered together, and the trial court's judgment will not be disturbed absent a finding that it is unsupported by the evidence so as to amount to an abuse of discretion. Id.'

"Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ.App.1996)

. More recently, the Court of Civil Appeals has stated:

"`The trial court has wide discretion over alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties' property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). Its judgment is presumed correct and will not be reversed unless it is so unsupported by the evidence ... as to be unjustly and palpably wrong. Grimsley, 545 So.2d at 76. However, that judgment is subject to review and revision. Moody v. Moody, 641 So.2d 818, 820 (Ala.Civ.App.1994). This court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1996), and, because the facts and circumstances of each divorce are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993).'

"Bushnell v. Bushnell, 713 So.2d 962, 964-65 (Ala.Civ.App.1997)

."

Ex parte Drummond, 785 So.2d 358, 360-61 (Ala.2000). The trial court ordered the husband to pay the wife $500 each month in alimony, to be increased to $750 a month once the parties' minor son reached the age of majority. However, we cannot review the trial court's periodic-alimony award because we have determined that the trial court's judgment must be reversed and the case remanded based upon the trial court's improper award of retirement benefits to the wife and because we must consider matters of property division and alimony together. Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993), and Albertson v. Albertson, 678 So.2d 118 (Ala. Civ.App.1996). Thus, on remand the trial court will have the opportunity to reconsider its award of periodic alimony or its division of property based upon the wife's having failed to present sufficient evidence to support awarding her a portion of the husband's retirement benefits. See DuBois v. DuBois, 714 So.2d 308 (Ala.Civ.App.1998)(after reversing a trial court's award of retirement benefits, this court was unable to review the trial court's division of property or its failure to award periodic alimony for an abuse of discretion, and on remand the trial court was ordered to consider the entire judgment in making an equitable division).

III. Vehicle and College Expenses for the Minor Son

The husband argues that the trial court erred in ordering him to provide a vehicle for the parties' minor son and in ordering him to pay three-fourths of the son's college...