Smith v. Smith

928 So. 2d 287, 2005 Ala. Civ. App. LEXIS 639, 2005 WL 2811773
Court of Civil Appeals of Alabama·Decided October 28, 2005·No. 2031182·Published·Cited by 7 cases

Opinion

CRAWLEY, Presiding Judge.

This is the third time the parties have been before this court. N. Laquetta Smith (“the wife”) and Brian C. Smith (“the husband”) were divorced on March 13, 2001. The trial court divided the marital assets and liabilities, awarding the wife, among other things, 32% of the value, as of February 1, 2001, of the husband’s 401(k) retirement account at Nichols Research Corporation (“NRC”). The wife was not awarded periodic alimony.

On the first appeal, the husband argued that the wife was not entitled to a share of his retirement benefits because the couple had not been married for 10 years at the time the divorce complaint was filed. This court agreed and reversed the award to the wife of a portion of the husband’s retirement benefits. See Smith v. Smith, 836 So.2d 893 (Ala.Civ.App.2002) (“Smith I ”). Deciding an issue of first impression, we held that for purposes of the 10-year-[289]*289marriage requirement of § 30 — 2—51(b)(1), AIa.Code 1975, the duration of a marriage is measured by the date of the filing of the complaint for divorce rather than by the date of the judgment divorcing the parties. At the conclusion of the opinion in Smith I, this court stated:

“Because the entire judgment, including the division of marital assets and the failure to award periodic alimony must be considered together in order to determine whether the trial court abused its discretion, see Hanna v. Hanna, 688 So.2d 887 (Ala.Civ.App.1997), and because we are reversing the trial court’s award to the wife of a portion of the husband’s retirement benefits, we must remand this case with instructions that the trial court reconsider the division of the marital assets and the award of periodic alimony. Although § 30 — 2—51(b)(1) precludes the division of the husband’s retirement benefits as marital property, the retirement benefits may be considered as a source of income to the husband from which to pay periodic alimony. See Brasili v. Brasili, 827 So.2d 813, 821 n. 9 (Ala.Civ.App.2002).”

Smith I, 836 So.2d at 900. During the pendency of the appeal in Smith I,

“the wife withdrew 32% of the husband’s 401(k) account and had it transferred to a separate 401 (k) account in her name. The amount of that withdrawal was $24,346.23. The husband did not move for a stay of execution of the trial court’s judgment or file a supersedeas bond.”

Smith v. Smith, 866 So.2d 588, 590 (Ala. Civ.App.2003) (“Smith II ”).

“On remand after this court’s reversal of the judgment, the trial court, on July 19, 2002, ordered the wife to restore to the husband the $24,346.23 she had withdrawn from his 401 (k) account. The trial court also ordered the husband to pay the wife $400 per month in periodic alimony. The trial court made no other changes in the division of marital assets and liabilities.”

Smith II, 866 So.2d at 590. The husband appealed from the trial court’s judgment on remand; the wife cross-appealed. In Smith II, the husband argued that this court had erred in its remand order by stating that the trial court could consider the husband’s retirement benefits as a source of income from which to pay periodic alimony. The husband maintained that periodic alimony must be payable from current income and, he said, his retirement account was not a source of current income for him. Distinguishing and discussing prior cases, this court agreed with the husband in Smith II:

“We ... reverse the trial court’s judgment awarding the wife periodic alimony and remand the cause for reconsideration by the trial court. If the court determines that the wife needs support from the husband and that the husband is able to pay such support from his current income, then it may award the wife alimony. The court may not, however, consider the husband’s retirement accounts as sources of income from which to pay periodic alimony.”

Smith II, 866 So.2d at 592-93.1 On remand to the trial court after the decision in Smith II, the wife waived her claim for periodic alimony. The husband insisted, however, that he was entitled to be reimbursed for $3,692.20 in periodic alimony payments he had made from August 2002 — pursuant to the trial court’s order [290]*290on remand following our decision in Smith I — through May 2003, when Smith II was decided. The trial court denied the husband’s claim for reimbursement.

In Smith II, the husband also contended that the trial court had erred by not requiring the wife to pay 12% interest on the $24,346.23 in retirement benefits that she was ordered to restore to the husband. The wife cross-appealed, arguing that the trial court had erred by denying her post-judgment motion without a hearing on the following issues:

“[The wife] contended] that the' trial court erred by ordering her to restore to the husband the $24,346.23 she withdrew from the husband’s 401(k) account when, she [said], she was entitled to present evidence indicating that, due to a decline in the stock market after the divorce and through no fault of her own, the value of the retirement funds at the time of the court’s order on remand was only $10,953.68. Furthermore, she also alleged the following:
“ ‘5. That all [NRC] employees, former and present, had to roll over or close their 401(k) account[s] (due to [a] merger with [Computer Services Corporation]), and that employees were given six (6) months to make the election to roll over or close the accounts. The [wife] was never provided with such notice and believes that the [husband] was provided with the information but did not pass it along to her.
“ ‘6. As no election was made, the [wife] received a check for $9348.35 and has been informed that $2337.07 has been paid to the Internal Revenue Service for tax and penalty. Said sum is not recoverable from the IRS.
“ ‘7. That the Order should be amended so that [the wife] returns to the [husband] $9348.28, the value of the account on the date it was closed.’ ”

Smith II, 866 So.2d at 590-91. With respect to the wife’s cross-appeal in Smith II, this court held:

“We conclude that the trial court erred in denying the wife a hearing on those issues. The wife was awarded a percentage of the husband’s retirement assets without regard to its value. Upon a reversal of the award, the wife would be required to return the same percentage of the assets to the husband, regardless of its current market value. See generally Green v. Green, 254 So.2d 802 (Fla.Dist.Ct.App.1971). If, as has apparently occurred in this case, the assets have declined in market value between the time of the initial award and the time of the appellate court reversal, then the wife is not liable to the husband for the depreciation because the husband did not move for a stay of execution of the judgment or file a su-persedeas bond. Id.

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Smith v. Smith, 928 So. 2d 287, 2005 Ala. Civ. App. LEXIS 639, 2005 WL 2811773 (Ala. Ct. App. 2005).

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