Wilkinson v. Wilkinson

905 So.2d 1

Bernard Schroder WILKINSON v. Claudia Kay WILKINSON.

2011255.

Court of Civil Appeals of Alabama.

April 16, 2004.

Certiorari Denied January 14, 2005.

Gerard J. Durward and G. John Durward, Jr., of Durward & Cromer, Birmingham, for appellant.

M. Richard Hughes, Birmingham, for appellee.

Alabama Supreme Court 1031192.

On Application for Rehearing

CRAWLEY, Judge.

The opinion of December 12, 2003, is withdrawn, and the following is substituted therefor.

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 [the] 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.)

Regardless of the trial court's belief that its original decision was correct, its duty on remand was to comply with the mandate in Wilkinson I. See Ex parte Jones, 774 So.2d 607, 608 (Ala.Civ.App. 2000).

"`On remand, the issues decided by the appellate court become [the] law of the case and the trial court's duty is to comply with the appellate mandate "according to its true intent and meaning, as determined by the directions given by the reviewing court." Ex parte Alabama Power Co., 431 So.2d 151[, 155] (Ala.1983) [(quoting 5 Am.Jur.2d, Appeal and Error, § 991 (1962))]. When the mandate is not clear, the opinion of the court should be consulted. See Cherokee Nation v. Oklahoma, 461 F.2d 674 (10th Cir.), cert. denied, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 489 (1972).'

"Walker v. Carolina Mills Lumber Co., 441 So.2d 980, 982 (Ala.Civ.App.1983) (emphasis added in Walker); see also Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983)."

Ex parte Jones, 774 So.2d at 608.

The "law of the case" doctrine prevents this court from revisiting the earlier disposition of the issues relating to the division of the wife's retirement account, the alimony award, or the requirement that the wife be made to pay for health-insurance costs. See Stephens v. Stephens, 699 So.2d 194, 196 (Ala.Civ.App.1997).

"`Under the doctrine of "law of the case," whatever is once established between the same parties in the same case continues to the be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.'"

Stephens, 699 So.2d at 196 (quoting Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987)). Therefore, the judgment of the trial court failing to comply with the mandate in Wilkinson I is reversed, and the cause is remanded with instructions that the trial court comply with the mandate set out in Wilkinson I.

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

OPINION OF DECEMBER 12, 2003, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON and PITTMAN, JJ., concur.

MURDOCK, J., concurs specially.

YATES, P.J., concurs in the result, 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, 865 So.2d 438 (Ala.Civ.App.2002), and in Applegate v. Applegate, 863 So.2d 1123 (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 10 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 date the action for divorce is filed," whenever an award of some benefit is made, even if couched in terms of a portion of a benefit the retiring spouse otherwise would receive at some time in the future, the present value of that award is necessarily attributable to the recipient. As long as the court's award does not include any benefit not vested (or not being received) as of the date the complaint for divorce is filed and meets the other three requirements outlined in paragraphs (1) through (3) of § 30-2-51(b), see ...