Self v. Self
| Decision Date | 10 May 2019 |
| Docket Number | 2171024 |
| Parties | David Michael SELF v. Sharon Kay SELF |
| Court | Alabama Court of Civil Appeals |
Wendy Ghee Draper, Anniston, for appellant.
Elma Rose Walton, Anniston, for appellee.
David Michael Self ("the former husband") appeals from a May 18, 2018, judgment entered by the Calhoun Circuit Court ("the trial court") granting a petition filed by Sharon Kay Self ("the former wife") regarding her entitlement to a portion of the former husband's retirement benefit under the Teachers' Retirement System of Alabama ("the teacher-retirement benefit"), including a portion of the teacher-retirement benefit that was paid into an account pursuant to the Deferred Retirement Option Plan ("the DROP") described in Ala. Code 1975, § 16-25-150 et seq.
The former husband was employed at Jacksonville State University, where he began working in November 1984 and continued working until he retired on January 31, 2016. After almost 32 years of marriage, the former husband and the former wife were divorced pursuant to a divorce judgment entered by the trial court on July 27, 2001 ("the divorce judgment"). The divorce judgment incorporated a settlement agreement between the parties ("the settlement agreement") that included the following provisions regarding the former husband's payment of periodic alimony to the former wife and the division of the former husband's retirement benefits:
In 2009, after the former husband was eligible to retire, he elected to remain employed at Jacksonville State University and to participate in the DROP. It is undisputed that the DROP did not exist when the divorce judgment was entered. See Act No. 2002-23, Ala. Acts 2002 (creating the DROP). The former husband participated in the DROP from September 1, 2009, through July 31, 2014, after which he remained employed at Jacksonville State University until January 2016, when he retired.2 During the former husband's participation in the DROP, monthly payments of the teacher-retirement benefit were paid into a DROP account ("the DROP account"), where they accumulated and earned interest until the former husband retired. See discussion, infra. Based on an election made by the former husband, on March 31, 2016, the funds in the DROP account, which totaled $140,846.86 -- including monthly payments of the teacher-retirement benefit, additional contributions made by the former husband during his participation in the DROP, and interest earned on those monthly payments and additional contributions -- were rolled over into the RSA-1 Deferred Compensation Plan, a tax-deferred plan managed by the Retirement Systems of Alabama.3 It was undisputed that the former husband had not informed the former wife of his participation in the DROP and that the former wife has received none of the teacher-retirement benefit that was deposited into the DROP account.
On April 12, 2016, the former wife filed a petition in the trial court, alleging that the former husband had failed to pay her her share of the teacher-retirement benefit as required by the divorce judgment. The former wife requested that the trial court enter an order finding the former husband in civil contempt and criminal contempt, awarding the former wife a judgment against the former husband "for all the unpaid portions of the [former wife's] one-half share of the teacher[-]retirement [benefit]," and awarding her attorney's fees and costs. The former wife subsequently amended her petition to add claims seeking a purported periodic-alimony arrearage and seeking unpaid portions of the former wife's share of the former husband's Social Security benefits.
The former husband filed an answer to the former wife's petition, as amended. The former husband admitted that the former wife was entitled "to receive one-half of the ... teacher retirement [benefit] after deduction of taxes," but, he added, that award should be based on "the value of [the teacher-retirement benefit] at the time of the divorce." Also, the former husband alleged that his periodic-alimony obligation had terminated when the former wife began receiving a portion of his monthly Social Security benefits in January 2016 and that the former wife's portion of his Social Security benefits should be based on the value of that benefit at the time of the entry of the divorce judgment.
On October 18, 2017, the trial court held an ore tenus proceeding on the former wife's petition. Testimony at trial focused on the periodic-alimony adjustments described in paragraph 6 of the settlement agreement, whether the former wife's entitlement to her portion of the teacher-retirement benefit under paragraph 12 of the settlement agreement had been triggered by the former husband's participation in the DROP, and the date for determining the value of the wife's portion of the teacher-retirement benefit. At the close of the proceeding, the trial court requested posttrial briefs addressing, among other things, whether the teacher-retirement-benefit provisions in paragraph 12 of the settlement agreement were a property settlement.
The former husband and the former wife filed posttrial briefs. In their posttrial briefs, the parties agreed that paragraph 12 of the settlement agreement was a property settlement.4 However, the former wife contended that she was entitled to one-half of the teacher-retirement benefit based on the present value of that benefit; the former husband contended that the amount of the teacher-retirement-benefit award to the former wife should be valued as of the "time of the divorce." The former husband also contended that, to the extent the settlement agreement was ambiguous as to the value of the teacher-retirement benefit to be used, it should be construed against the former wife because the settlement agreement had been drafted by the former wife's counsel.
On December 12, 2017, the trial court entered an order making certain findings of fact and conclusions of law but noting that the court was unable to calculate the exact amount of the teacher-retirement benefit that the former husband must pay to the former wife. The December 2017 order required the parties to hire a mutually agreed upon accountant to assist with the teacher-retirement-benefit calculation or to submit names of accountants (from which the trial court could choose) to assist with the teacher-retirement-benefit calculation. The December 2017 order set the case for a hearing to be held on January 29, 2018, to review the accountant's calculation.
On December 21, 2017, the parties filed a notice with the trial court identifying Tim Wilson, a certified public accountant, as the accountant to assist with the teacher-retirement-benefit calculation. Thereafter, the parties filed a joint motion to continue the hearing scheduled for January 29, 2018. The trial court then scheduled a conference with the attorneys to be held on March 22, 2018.
On March 22, 2018, after the scheduled conference, the trial court entered an order amending the December 2017 order. The March 2018 order again noted that the trial court was unable to calculate the amount of the teacher-retirement benefit that the former husband must pay to the former wife. Likewise, the March 2018 order retained the provision for an accountant to assist with the teacher-retirement-benefit calculation.5 The March 2018 order set a review conference to be held on April 6, 2018.
On April 6, 2018, a few hours before the scheduled conference, the former husband filed a submission that purportedly reflected the periodic-alimony payments he had made to the former wife and his calculations regarding the amount of the teacher-retirement benefit to which the former wife was entitled. Based on the former husband's calculation, he owed the former wife $344.46 as of March 2018 and she was entitled to $322.62 per month of the teacher-retirement benefit (one-half of $847.54 less purported deductions for taxes and health insurance) and $369.60 per month of his Social Security benefits on a going-forward basis.
On April 6, 2018, the trial court entered a second amended order regarding the former wife's petition. The April 2018 order, which noted that the former husband had filed for bankruptcy after the divorce judgment was entered, states, in pertinent part:
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