Wilkinson v. Wilkinson, No. 2011255 (Ala. Civ. App. 12/12/2003)

• Decision Date: 12 December 2003
• Docket Number: No. 2011255.,2011255.
• Parties: Bernard Schroder Wilkinson v. Claudia Kay Wilkinson.
• Court: Alabama Court of Civil Appeals

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Bernard Schroder Wilkinson v. Claudia Kay Wilkinson.

No. 2011255.

Court of Civil Appeals of Alabama.

Decided December 12, 2003.

Appeal from Jefferson Circuit Court, (DR-00-997)

CRAWLEY, Judge.¹

This is the second time these parties have been before this court. See Wilkinson v. Wilkinson, 828 So. 2d 924 (Ala. Civ. App. 2001) ("Wilkinson I"). In Wilkinson I, this court reversed the trial court's divorce judgment insofar as it failed to order the wife to provide the husband continued health-insurance coverage, failed to award the husband any portion of the wife's retirement benefits, and failed to order the wife to pay sufficient alimony to the husband. On remand, the trial court entered an order modifying its alimony award but failing again to require the wife to provide continued health insurance for the husband or to divide the wife's retirement benefits. The husband appeals, arguing that the trial court is in error for failing to comply with the mandate of this court in Wilkinson I.

The trial court entered a lengthy order on remand, which stated, in part:

"2. This Court on remand, as in the original trial, denies the husband's request to divide the wife's retirement. This Court is well aware of the Court of Appeals' instructions herein and is not ignoring that mandate. However, this court must apply the law to the facts presented AND THE HUSBAND FAILED TO MEET THE EVIDENTIARY BURDEN IMPOSED BY § 30-3-51(b), Code of Alabama (1975).

"The wife has a retirement plan with a vested sum of $105,000 .... She was hired December 1964 and vested February 1965 .... These parties married in 1985. [Section] 30-2-51(b)(2) prohibits this Court from awarding `the value of any retirement benefits acquired prior to the marriage, including any interest or appreciation of the benefits.' This Court is unable to find one word of evidence concerning this critical factor. Without such proof, any award is error. Dubois v. Dubois, 714 So. 2d 308 (Ala. Civ. App. 1998). And a remand is not an opportunity for a party to retry a case to present evidence he should have presented the first time.

"3. With regard to health insurance, this court is again faced with a dilemma. This Court knows generally the availability of COBRA coverage and related issues. (Carter v. Carter, 666 So. 2d 28 (Ala. Civ. App. 1995), presumption that trial court knows the law).

"There is (and was) absolutely no evidence before this court that any insurance was available to Husband through the Wife's efforts or employment. While previous coverage existed, it had been terminated. The Husband's projected budget ... includes an amount for health insurance premiums and that entry has been considered in addressing the periodic alimony needs."

(Capitalization and emphasis in original.)

The transcript of the original divorce trial reveals that the husband was covered under the wife's insurance until she terminated his coverage in January 2001. In Wilkinson I, we "conclude[d] that the trial court erred in failing to require that the wife provide continued health-insurance coverage for the husband or, at a minimum, that she be required to provide COBRA benefits, which would allow the husband 36 months of health-insurance coverage." Wilkinson I, 828 So. 2d at 928. The trial court, on remand, indicated that neither party had indicated at trial whether insurance was still available through the wife's employment or otherwise. In addition, the trial court noted that the husband's projected budget, an exhibit at the original trial, included an amount for health insurance. Based on those facts, the trial court did not order the wife to provide the husband health insurance, but it considered the amount of the estimated health-insurance premium submitted on the husband's trial exhibit in setting the wife's alimony obligation. In essence, then, the trial court has required the wife, indirectly, to pay for the husband's health-insurance coverage; therefore, we conclude that the trial court did comply with this court's mandate in Wilkinson I.

The husband also complains that the trial court failed to comply with our mandate requiring the trial court to award the husband a portion of the wife's retirement benefits. The trial court made very clear its basis for failing to award the husband any of the wife's retirement benefits — the husband's failure to meet his burden under Ala. Code 1975, § 30-2-51(b). The wife had accrued retirement benefits during her employment for approximately 20 years before the parties married. As the trial court correctly explained, § 30-3-51(b)(2) prohibits an award of any retirement benefits earned before the marriage, and it specifically includes within that prohibition any interest on or appreciation of those premarital retirement benefits. Without the necessary information regarding the amount of retirement benefits the wife accrued before the marriage and a determination of the amount currently in her retirement account that is either interest on or some other form of appreciation of those premarital retirement benefits, the trial court was unable to award the husband any portion of the wife's retirement benefits without running the risk of violating the statute. Applegate v. Applegate, [Ms. 2011144, May 9, 2003] ___ So. 2d ___, ___ (Ala. Civ. App. 2003); McAlpine v. McAlpine, [Ms. 2010532, Nov. 15, 2002] ___ So. 2d ___, ___ (Ala. Civ. App. 2002). Therefore, we conclude that the trial court's failure to award the husband any portion of the wife's retirement benefits should be affirmed.

Both parties' requests for an attorney fee on appeal are denied.

AFFIRMED.

Thompson and Pittman, JJ., concur.

Murdock, J., concurs specially.

Yates, P.J., dissents, with writing.

MURDOCK, Judge, concurring specially.

Consideration of the issue of the award of retirement benefits in the present case has led me to reexamine this court's opinions in McAlpine v. McAlpine, [Ms. 2010352, November 15, 2002] ___ So. 2d ___ (Ala. Civ. App. 2002), and in Applegate v. Applegate, [Ms. 2011144, May 9, 2003] ___ So. 2d ___ (Ala. Civ. App. 2003). Some of the statements in those opinions suggest that a trial court must always calculate the present value of retirement benefits that are to be included in a property division in a divorce action and that a trial court must always express the division of such retirement benefits in terms of their present value. I take this opportunity to express my conclusion that, while the results this court reached in McAlpine and Applegate were correct, those suggestions are incorrect and do not provide proper direction to the bench and bar for future cases.

Section 30-2-51(b), Ala. Code 1975, 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."

(Emphasis added.)

In Smith v. Smith, 836 So. 2d 893 (Ala. Civ. App. 2002), a case we decided not long before we issued our opinions in McAlpine and Applegate, this court noted each of the various requirements imposed by § 30-2-51(b), Ala. Code 1975. After reflecting further on this court's opinions in McAlpine and Applegate, I come back to the conclusion that our earlier opinion in Smith v. Smith contained a sufficiently complete restatement of the statute's requirements:

"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, 836 So. 2d at 899-900 (emphasis on "provided that" original; other emphasis added). Nothing in this restatement requires the calculation of the present value of an awarded retirement benefit or dictates that every judgment awarding retirement benefits be couched in terms of the "present value" of those benefits.

In considering the meaning of the opening sentence of § 30-2-51(b), it is important to bear in mind that any asset, or portion of an asset, has both present and future values. Thus, an award to one spouse of a portion of the retirement benefits to be received by the other spouse necessarily entails an award of both the present and the future values of that benefit. While the opening sentence of § 30-2-51(b) provides that a judge may include in the estate of either spouse "the present value of ... future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the...