Spuhl v. Spuhl

• Decision Date: 22 June 2012
• Docket Number: 2101057.
• Citation: 99 So.3d 339
• Parties: Cheri Denise SPUHL v. Robert SPUHL.
• Court: Alabama Court of Civil Appeals

99 So.3d 339

Cheri Denise SPUHL

v.Robert SPUHL.

2101057.

Court of Civil Appeals of Alabama.

June 22, 2012.

Amy S. Creech of Rhodes & Creech, Huntsville, for appellant.

William P. Burgess, Jr., and Mariam A. Irwin of William P. Burgess, Jr., P.C., Huntsville, for appellee.

THOMPSON, Presiding Judge.

Cheri Denise Spuhl (“the wife”) appeals from a judgment divorcing her from Robert Spuhl (“the husband”). The judgment, which incorporated an agreement of the parties regarding custody and the division of certain real property, ordered the husband to pay the wife periodic alimony and child support, divided the marital property, and allocated debt.

Briefly, the record indicates the following. The parties married in January 1993. Two children (“the children”) were born of the marriage. The wife had two other children from a previous marriage; they were adults at the time of this action. At trial, the wife contended that the husband had an affair, which was continuing at the time of the trial, and that the affair was what had caused the breakdown of the marriage. The husband, on the other hand, testified that he had asked the wife for a divorce as early as 2004. The evidence indicated that the parties frequently argued, yelling at each other and calling each other vulgar names. At times, the arguments turned physical. The husband testified to an incident in which he and the wife were arguing and the wife “grabbed” his genitals and then scratched him.

When the parties married, the husband was in the United States Army. He had been in the army since December 1983. The husband retired from the army as a lieutenant colonel in 2005, and the family then moved to Huntsville, where the husband worked as a civilian. At the time the husband filed this action, his gross monthly salary was $8,993.81. From his employer, the husband also earned bonuses, his cellular-telephone bill was paid, and, in 2010, he received a $4,800 distribution from his employer's “SAR account.” In addition, the husband received military-retirement benefits of $3,802 each month, which included a Veterans Affairs' waiver of $376. The husband's gross monthly income at the time of the trial was $14,951.14; his average monthly net income was $9,390.

The wife did not work outside the home during the marriage. She testified that, because of the husband's deployments, she was often the only person available to care for the children. The wife said that between running the household and her responsibilities as a military spouse, which included assisting other military spouses with any number of difficulties they may encounter, she found it impossible to have a career outside the home. At the time of the trial, the wife worked as a receptionist in a doctor's office earning $11 hourly. She worked approximately 30 to 32 hours each week.

The parties did not own any real property at the time of the trial. They testified as to their personal property; the value of their various bank accounts, retirement accounts, and insurance policies; their three vehicles; and their debt.

After considering the evidence, the trial court entered a judgment dividing the parties' personal property, their vehicles, and their various insurance policies, bank accounts, and retirement accounts, excluding the husband's military-retirement benefits. The husband was ordered to pay the wife $2,250 each month in periodic alimony. The trial court stated that the amount of the wife's periodic alimony was to be equal to 28% of the husband's gross nondisability military-retirement benefits.

The trial court also ordered the husband to pay “basic child support” plus $606 a month for the children's tuition at Holy Spirit School. The judgment further provides that once the children complete the eighth grade at Holy Spirit School, the wife has the option of sending them to a private high school, and the husband will continue to be responsible for $606 each month toward the tuition at a private high school. The wife is to be responsible for any costs in excess of $606 each month. The wife appeals from the judgment.

The wife contends that the trial court abused its discretion in the division of the marital property. Specifically, the wife asserts, the trial court erred when it did not include the husband's military-retirementbenefits as a marital asset when dividing the marital property and, instead, ordered that the periodic alimony she was to receive was to be paid from the husband's military-retirement benefits.

Matters of alimony and property division rest soundly within the trial court's discretion, and rulings on those matters will not be disturbed on appeal except for a plain and palpable abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). However, regarding a question of law, this court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).

In the judgment, the trial court stated: “The award herein made to the Wife of a portion of the Husband's military retirement benefits is being made as periodic alimony, in consideration of the opinion of the Court of Civil Appeals of Alabama in Rose v. Rose, (Ala.Civ.App., April 1, 2011).” In discussions with the attorneys during the trial, the trial court said that “there's a recent case that said if a military—if the husband is already retired, any award I make to [the wife] from that retirement is in the nature of alimony which is subject to [§ ] 30–2–55[, Ala.Code 1975]. Remarriage or cohabitation would stop it.” In their briefs to this court, the parties both represent to this court that the “recent case” to which the trial court was referring was Rose v. Rose, 70 So.3d 429 (Ala.Civ.App.2011). It appears that the trial court read Rose as prohibiting treating military-retirement benefits as a marital asset subject to division and as providing that such benefits could be awarded only as periodic alimony. The trial court has read Rose too narrowly.

In Rose, this court was called on to determine whether the parties' divorce judgment providing the former wife a share of the former husband's military-retirement benefits constituted an award of an unmodifiable division of marital property or whether it was a source of periodic alimony. The divorce judgment, which incorporated an agreement of the parties, provided for the division of “assets” identified by the parties, including the former husband's military-retirement benefits. The judgment referred to the division of those assets as a “property settlement.” Rose, 70 So.3d at 431. The judgment stated that the former wife would receive 50% of the former husband's retirement benefits, including any cost-of-living allowances. It went on to say, however, that the former wife's entitlement to those benefits would terminate if she were to remarry or die. Id. When the former wife began receiving payments of the former husband's benefits, she included them as income on her tax returns. Id.

The Defense Finance and Accounting Service (“DFAS”), the agency responsible for issuing military-retirement benefits, issued the former wife's portion of the payments directly to her. The former husband learned that the former wife was cohabitating with a member of the opposite sex, and he contacted DFAS, instructing the agency to stop issuing payments to the former wife. DFAS complied, and the former wife filed an action to recoup the unissued payments and seeking to hold the former husband in contempt. The former wife contended that her award of 50% of the former husband's military-retirement benefits was an unmodifiable division of marital property. The former husband characterized the award as periodic alimony. Id. at 431–32.

This court noted that, “[a]lthough retirement benefits may be divided as property, such benefits are equally available as a source of income from which to pay periodic alimony. Singleton v. Harp, 689 So.2d 880, 882 (Ala.Civ.App.1996); see also Daniel v. Daniel, 841 So.2d 1246, 1251 (Ala.Civ.App.2002), and Strong v. Strong, 709 So.2d 1259, 1261 (Ala.Civ.App.1998).” Id. at 432. We further noted that “there is no requirement that retirement benefits, in the event of a divorce, be treated only as a source of alimony in gross or as marital property subject to equitable division.” Id. After discussing the differences between alimony in gross, i.e., an unmodifiable award of property or a “property settlement,” and periodic alimony, and applying the elements of each form of award with the facts in Rose, we determined that the former wife's award of a share of the former husband's military-retirement benefits constituted an award of periodic alimony that was judicially modifiable. Id. at 433. Nothing in Rose should be read as limiting a trial court's discretion as to whether to treat military-retirement...