Cornelison v. Cramer

180 So. 3d 883, 2015 Ala. Civ. App. LEXIS 93, 2015 WL 1877687
CourtCourt of Civil Appeals of Alabama
DecidedApril 24, 2015
Docket2140176
StatusPublished

This text of 180 So. 3d 883 (Cornelison v. Cramer) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cornelison v. Cramer, 180 So. 3d 883, 2015 Ala. Civ. App. LEXIS 93, 2015 WL 1877687 (Ala. Ct. App. 2015).

Opinion

THOMPSON, Presiding Judge.

Kathleen Theresa Cornelison n/k/a Kathleen Cramer (“the wife”) and Bobby Dean Cornelison (“the husband”) were divorced by an August 7, 1998, judgment of the Madison Circuit Court (“the trial court”). That divorce judgment incorporated the terms of a settlement agreement reached by the parties. In pertinent part, the divorce judgment provided, with regard to the division of retirement benefits:

“21. The Wife shall be entitled to 50% of the amount of the Husband’s retirement from the Nation^ Guard when he retires from the same. The Wife shall pay all the taxes due on all of her portion of said retirement benefits.
“The Husband (military member) ... will retire from the National Guard in June 2005 and hé will receive military retirement benefits at. the age of- sixty.
“The parties agree that the Wife (recipient spouse), ..: shall receive one-half (1/2) of the Husband’s disposable military retirement pay beginning as soon as practicable upon the Husband’s retirement, and continuing for so long as the Husband is entitled to receive such benefits. The division of the Husband’s military retirement pay from his service in the National Guard shall constitute a property settlement to the Wife and shall not be modifiable. in the future.
“The parties’ marriage began on September 18, 1980. The Husband’s military service began in June 1979 and it is estimated that said service will terminate in June 2005. ■
“The Wife (recipient spouse) is eligible for direct payment Of her portion of the Husband’s military retirement pay from the Defense Finance and Accounting Service (DFAS) as a result of the- parties’ being married for more than ten years of creditable service on active duty in the National Guard....
“The Defense [Finance] and Accounting Service, or its successor, is authorized and directed to make direct payments of the Wife’s one-half of the Husband’s disposable military retired pay directly to the Wife ... at such address as she may from time to time provide to DFAS or its successor. Said payments shall begin effective upon the Husband’s retirement and shall continue payable to the Wife until the death of the Husband.
“If, during any month that the Husband is entitled to receive military retired pay, DFAS or its successor shall fail or refuse to make a direct payment to the Wife and makes instead payment of the Wife’s portion to the Husband, then the Husband agrees to immediately pay to the Wife her portion of the military retired pay, it is intended that this Order shall qualify as a Qualified Domestic Relations Order as such is de[885]*885fined under Section 414(p) of the Internal Revenue Service Code of 1986, as amended. The parties agree that this Court shall retain jurisdiction to amend this Order as might be necessary to establish or maintain its status as a Qualified Domestic Relations Order, or otherwise to carry out the intent of this Agreement.
“22. The Wife shall be entitled to 50% of the amount in the Husband’s police pensions as of the date of the entry of a final decree of divorce, it is intended that said amount as determined by said date is a property settlement and the Wife shall not be entitled to further benefits from said plans which may have accrued after said date. The parties agree that pursuant to Qualified Domestic Relations Orders, 50% of the Husband’s pension plans; as of said date, shall be set aside and segregated for the benefit of the wife in the PEBSCO, Retirement Systems of Alabama plan, and Police Office Annuity Funds. Such Qualified Domestic Relations Orders will be substantially in the form of the Orders which are attached to .this Agreement as Exhibit ‘A’, Exhibit ‘B’, and Exhibit ‘C.’ The Wife shall make no other present or future claim with respect to these pension plans.”

(Emphasis added.)

On July 19, 1999, the trial court entered an order titled “Consent Order Modifying Method by Which [the Wife] Receives Certain Retirement Funds.” That order provided:

“This cause comes to be heard on the [the wife’s] motion to alter or amend the divorce [judgment] entered on August 7, 1998, and the parties have stipulated that they have reached an agreement regarding the same. Upon consideration of the same, the Court does hereby ORDER, ADJUDGE, and DECREE as follows:
“1. [The husband] is hereby ORDERED to pay to the [wife] from his retirement benefit through the Retirement Systems of Alabama,-an amount equal to one-half of a fraction, the numerator of which is 10, and the denominator of which is the total number of years the [husband] has participated in the Retirement Systems of Alabama system.
“2. The [husband] is hereby ORDERED to pay to the [wife] from his retirement benefit through the Alabama Peace Officers’ Annuity and Benefit Fund, an amount equal to one-half of a fraction, the numerator of which is 10, and the denominator of which is the total number of years the [husband] has participated in the Alabama Peace Officers’ Annuity and Benefit Fund system.
“3. The [husband] is hereby ORDERED to pay to the [wife] from his retirement benefit through the Public Employees Benefit Services Corporation (PEBSCO), an amount equal to one-half of a fraction, the numerator of which is 10, and the denominator of which is the total number of years the [husband] has participated in the Public Employees Benefit Services Corporation (PEBSCO) .system.
“4. The [husband] shall make said payments to the [wife] on the tenth (10th) day of each month he receives each said pension or retirement benefits.
“5. The [husband] shall provide to the [wife] each month copies of all pay stubs or other evidence showing the gross amount paid to the [husband] each month for said benefits.
“6. The [wife] is hereby authorized by the Court and by the [husband] to obtain information from the payors of said retirement benefits the amount of [886]*886the benefits being paid to the [wife] in order to verify the same.
“7. The parties reserve the right to petition the Court for a modification of child support, or any other issues regarding enforcement of terms of the parties’ divorce decree, which may have occurred prior to the entry of this order. This consent modification is intended only to modify the method by which the [wife] receives certain retirement funds, as the plan administrators will not hon- or the Qualified Domestic Relations Order previously entered.”

On January 29, 2014, the wife filed in the trial court a petition seeking to have thq husband held in contempt for his alleged failure to comply with the provisions of the August 7, 1998, divorce judgment and the July 19, 1999, consent order that governed the division of retirement benefits. The husband answered, denying the material allegations of the contempt petition. On September 14, 2014, the husband moved to dismiss the wife’s petition, arguing in that motion that the July 19, 1999, consent order was an improper modification of the property-settlement provisions of the divorce judgment and, therefore, that that order could not be enforced.

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Bluebook (online)
180 So. 3d 883, 2015 Ala. Civ. App. LEXIS 93, 2015 WL 1877687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cornelison-v-cramer-alacivapp-2015.