McCarron v. McCarron

• Decision Date: 21 November 2014
• Docket Number: 2130513.
• Citation: 168 So.3d 68
• Parties: Joseph Edward McCARRON III v. Jerry Ann MCCARRON.
• Court: Alabama Court of Civil Appeals

168 So.3d 68

Joseph Edward McCARRON III

v.Jerry Ann MCCARRON.

2130513.

Court of Civil Appeals of Alabama.

Nov. 21, 2014.

Rehearing Denied Jan. 30, 2015.

James E. Robertson, Jr., of Stewart Howard P.C., Mobile, for appellant.

Robert W. Waller, Jr., of Wilkins, Bankester, Biles & Wynne, P.A., Bay Minette; and Kenneth R. Raines, Fairhope, for appellee.

Opinion

MOORE, Judge.

Joseph Edward McCarron III(“the husband”) appeals from a judgment divorcing him from Jerry Ann McCarron(“the wife”) to the extent that it divided the parties' property, awarded the wife alimony, and ordered the husband to pay the wife's attorney's fees.We affirm in part and reverse in part.

Procedural History

On July 2, 2012, the wife filed a complaint seeking a divorce from the husband.On August 14, 2012, the husband filed an answer and a counterclaim seeking a divorce.On September 4, 2012, the wife answered the husband's counterclaim.After a trial, the trial court entered a judgment on November 25, 2013, divorcing the parties on the ground of the husband's adultery, dividing the parties' marital property, and awarding the wife periodic alimony.On December 23, 2013, the husband filed a postjudgment motion.On February 6, 2014, the trial court amended its judgment.On February 17, 2014, the wife filed a postjudgment motion.On February 19, 2014, the trial court entered an order on the wife's postjudgment motion.On March 18, 2014, the husband filed his notice of appeal.¹

Analysis

I.Property Division and Alimony

On appeal, the husband complains primarily that the trial court erred in its property division and its award of periodic alimony to the wife.The issues of property division and alimony are interrelated, and they must be considered together.Albertson v. Albertson,678 So.2d 118, 120(Ala.Civ.App.1995).First, we will consider the issues raised by the husband relating to the property division and periodic alimony that do not require joint treatment.We will then address the issues raised by the husband regarding his ability to pay the property settlement and periodic alimony awarded by the trial court.

A.Property Classification

Before making a property division, a trial court must first ascertain what property and debt belongs in the marital estate.SeeAla.Code 1975, § 30–2–51(a).In this case, the trial court included the following real estate owned jointly by the parties: the marital home (“the Orange Beach house”), a condominium (“the Fairhope condo”), and a house occupied by the wife (“the Fairhope house”).As for personal property, the trial court included the following in the marital estate: the husband's 49% ownership interest in a closely held family corporation, McCarron Insurance Group (“MIG”); a joint checking account; household furniture; and a boat.The trial court included as marital debt, among other things, the mortgages associated with the real property and the wife's credit-card balances.

The husband argues that the trial court erred in including the Orange Beach house in the marital estate because, he says, it had been his grandparents' house and had been acquired toward the end of the parties' marriage.We note, however, that, although the husband had apparently inherited a one-fifth interest in the house, he had subsequently purchased the remaining four-fifths interest of his siblings during the marriage with marital funds.Also during the marriage, the wife had helped maintain the house, the parties had refinanced the mortgage on the house and had borrowed approximately $87,000 to add on to the house, and the parties had lived there together for almost 10 years.Under those circumstances, we conclude that the trial court properly considered the Orange Beach house as a marital asset.See, e.g., Nichols v. Nichols,824 So.2d 797, 802–03(Ala.Civ.App.2001)(discussing the difference between marital estates and separate estates and noting that property purchased during the marriage with marital funds is marital property);see alsoAla.Code 1975, § 30–2–51(a)(allowing trial court to consider property inherited by one spouse as marital property when property was used for the common benefit of the marriage).

The husband further argues that the trial court erred in including in the marital estate more than 50% of his ownership interest in MIG because, he argues, that ownership interest is a “retirement benefit” within the meaning of Ala.Code 1975, § 30–2–51(b)(1).Alabama Code 1975, § 30–2–51(b), provides, in pertinent part:

“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:

“....

“(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.”

Both parties testified that they were depending on the husband's ownership interest in MIG to support them in their retirement.In its judgment, the trial court stated that it was awarding the wife $400,00 “in contemplation of her retirement in the form of property division.”The parties' and the trial court's characterizations do not establish that the husband's ownership interest in MIG constituted a “retirement benefit,” however.In Brasili v. Brasili,827 So.2d 813(Ala.Civ.App.2002), this court held that the determination of what constitutes a retirement benefit should be determined by the plain meaning of the term.This court has held that retirement benefits include military-retirement benefits; a state civil-service plan; private retirement plans, including individual retirement accounts, Keogh accounts, and annuities; qualified pension plans; profit-sharing retirement plans;and 401(k) accounts.827 So.2d at 821 n. 8.In each case, the term “retirement benefits” refers to monetary benefits accessible only in the event of a retirement of one of the spouses.The plain meaning of “retirement benefits” cannot logically be expanded to include an ownership interest in a closely held business yielding income regardless of the employment status of the holding spouse, even if the parties agree that they planned to use that income for their support after both retired.

The husband argues that his ownership interest in MIG, described as a minority interest in a closely held family corporation that is not readily marketable, should not be considered marital property because, he says, that interest has never been titled in the wife's name and because the wife did not materially contribute to the development of the business.Besides generally describing the properties of alimony in gross, the husband cites Ex parte Andrews,24 So.3d 1091(Ala.2009), in support of his argument.That decision was only a no-opinion denial of a petition for a writ of certiorari, with a concurring opinion by Justice Shaw and a dissenting opinion by Chief Justice Cobb.The denial of a petition for a writ of certiorari does not establish any binding legal authority as to the merits of the underlying appeal.Shepherd v. Summit Mgmt. Co.,794 So.2d 1110, 1116(Ala.Civ.App.2000).The husband also cites Buchanan v. Buchanan,936 So.2d 1084, 1087(Ala.Civ.App.2005), in support of his argument.That case does not, however, support the argument made by the husband that his ownership interest in MIG should be considered a part of his separate estate.Because the husband has failed to cite any relevant legal authority in support of his argument, we do not consider this issue further.SeeRule 28(a)(10), Ala. R.App. P.

The husband contends that the wife's credit-card debt should not be included in the marital estate because, he says, the debt was incurred largely after the parties' separation.We note, however, that the wife testified that the majority of the charges had been incurred during the parties' marriage.Although the wife testified that she had charged some of her attorney's fees to the credit cards, the trial court granted the husband a credit for those charges against the amount he was ordered to pay in attorney's fees.The parties presented no evidence indicating what, if any, other charges had been incurred during the separation.Therefore, we hold that the trial court did not commit any error on this point.SeeMcCaskill v. McCaskill,104 So.3d 186, 192(Ala.Civ.App.2012)(noting that, without evidence indicating which charges were incurred after the separation, this court could not conclude that the credit-card debt was a part of the husband's separate estate).

We conclude that the trial court did not err in classifying the Orange Beach house and the husband's entire ownership interest in MIG as marital property or in classifying the wife's credit-card debt as a marital debt.

B.Property Valuation and Division

After determining the property within the marital estate, a trial court must ascertain the value of that property, equitably divide the property, and implement a fair method for distributing the property.SeeBrothers v. Brothers,623 So.2d 309(Ala.Civ.App.1993).In this case, the husband does not raise any arguments regarding the valuation of the marital property, but he does argue that the trial court erred in dividing and distributing the property.

The husband first argues that the provisions in the trial court's judgment awarding him his ownership interest in MIG “without any claim by the [w]ife,” but awarding the wife $400,000 “in property settlement, representing approximately 67% of the [h]usband's 49% interest in [MIG],” conflict.We disagree with the husband.It is clear from the language of the divorce judgment, as amended, see, e.g., Hallman v. Hallman,802 So.2d 1095, 1098(Ala.Civ.App.2001)(“The words of a judgment are to be given their plain and ordinary meanings.”), that the trial court awarded the wife a monetary property...