Wilkinson v. Wilkinson, No. 2011255 (Ala. Civ. App. 12/12/2003)
|12 December 2003
|Bernard Schroder Wilkinson v. Claudia Kay Wilkinson.
|Alabama Court of Civil Appeals
Appeal from Jefferson Circuit Court, (DR-00-997)
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:
(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.
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:
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:
Smith, 836 So. 2d at 899-900 (). 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...
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