Swindle v. Swindle

204 So. 3d 430, 2016 Ala. Civ. App. LEXIS 66
CourtCourt of Civil Appeals of Alabama
DecidedMarch 18, 2016
Docket2140895
StatusPublished
Cited by3 cases

This text of 204 So. 3d 430 (Swindle v. Swindle) 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
Swindle v. Swindle, 204 So. 3d 430, 2016 Ala. Civ. App. LEXIS 66 (Ala. Ct. App. 2016).

Opinion

DONALDSON, Judge.

Jeffery Lee Swindle (“the former husband”) appeals from a judgment of the Madison' Circuit Court (“the trial court”) holding the former husband in contempt for failing to comply with the provisions of the parties’ divorce judgment and, among other things, awarding Mary Yolanda Swindle (“the former wife”) an amount equivalent to 50% of funds the former husband has received, and continues to receive, as a result of his military service.1 The parties’ divorce judgment, which incorporates a settlement- agreement between the parties, provides that the former wife is entitled to 50% of the former husband’s “disposable” military-retirement pay. Under federal law, military-retirement pay received as a result of disability retirement pursuant to Title 10 U.S.C., Chapter 61, and computed based on a percentage of the disability of'the retiree is defined'not to be “disposable.” 10 U.S.C. § 1408(a)(4)(C). Because some of the funds received by the former husband were, and continue to be, computed based on his disability status and not his years of [432]*432military service, those funds cannot be considered as part of the disposable military-retirement pay awarded to the former wife under the terms of the parties’ divorce judgment. Accordingly, we reverse the contempt judgment insofar as it awards the former wife any portion of the former husband’s military-retirement pay that is, or was, based on his disability; we affirm the contempt judgment insofar as it awards the former wife a portion of the former husband’s military-retirement pay that was not based on his disability; and we remand the cause to the trial court.

Facts and Procedural History

The parties were divorced by the trial court on February 21, 2008. The divorce judgment incorporates an agreement reached by the parties, which includes the following provision:

“10. The parties agree that the Husband has been in the United States Army for nineteen (19) years and eight (8) months as of the date of the filing of this action, and the parties were married twenty (20) years as of the date of their separation from each other. As a consequence thereof, it is agreed that the Wife is entitled to a portion of the Husband’s military retirement benefits from the Defense Finance & Accounting Service of the Cleveland Center, Cleveland, Ohio, when Husband so retires. It is agreed that the Wife will receive that portion of the Husband’s disposable military retirement to which she is manda-torily entitled, which is 50% of the Husband’s disposable military retirement, to be calculated based on the date of the parties’ separation. It is further agreed that the parties will execute any and all documentation necessary to effectuate the entry of an acceptable Order for purposes of the Defense Finance & Accounting Service making payments directly to the Wife relative to her share of the retirement benefits in question. The Husband will elect Former Spouse Benefit Plan upon retirement and name the Wife as beneficiary upon retirement and said monthly premiums will be deducted from Wife’s portion each month.”

On July 20, 2012, after 24 years and 9 months of service, the Department of the Army placed the former husband on the temporary-disability retired list (“TDRL”) with a 50% disability rating as a result of a combat-related injury. The authorizing statute for his placement on the TDRL is Title 10 U.S.C., Chapter 61, § 1202, which allows for such a placement if it is determined that the military member might be permanently disabled and would be qualified for permanent retirement as a result of a disability pursuant to 10 U.S.C. § 1201. The former husband received a letter dated July 26, 2012, regarding his status and expected benefits. That letter informed the former husband that, based on his years of military service, his monthly gross pay for the first month he was on the TDRL would be $1,468.13 and that, thereafter, his monthly gross pay would be $4,004. The letter notified the former husband of his option to elect a different method of pay computation within a 45-day period; he could elect payments based on his years of accumulated military service or, in the alternative, payments based on his disability status. The former husband’s retirement-account statements show that, while he was on the TDRL, he received $4,004 per month until December 31, 2013, and that, thereafter, he received $4,024 per month.

After further medical examination, the former husband’s condition was determined to have worsened, and he was assigned a 70% disability rating. On August 20, 2014, the former husband was placed on the permanent-disability retired list (“PDRL”) pursuant to 10 U.S.C. § 1201. [433]*433The former husband received a letter dated September 17, 2014, notifying him that he was entitled to receive retirement pay computed by using either 1) his disability percentage of 70%, which' qualified him to receive a gross pay in the amount of $4,551 per month, or 2) his years of service, which qualified him to receive gross pay in the amount of $4,024 per month. , The September 17, 2014, letter, informed the former husband that he would receive $4,551 per month by default and that he had 45 days to elect the other method of computing his retirement pay. The former husband’s retirement-account statements show that, after his placement on the PDRL, he received $4,551 in monthly gross pay.

The former wife did not receive any portion of the payments received by the former husband. On April 16, 2014, the former wife filed a petition seeking an order of contempt against the former husband for failing to provide her with 50% of his disposable military-retirement pay, as required by the parties’ divorce, judgment. The former wife also sought additional findings of contempt against the former husband, alleging that the former husband had failed to pay all the alimony owed to her, had failed to pay for 50% of all the uninsured medical expenses for their children, and had failed to name her as a beneficiary under his survivor benefit plan. The former husband filed an answer alleging that the retirement income he was receiving consisted of disability benefits and was not “disposable” military-retirement pay as contemplated by the divorce judgment. Hé also petitioned for a finding of contempt against the former wife, alleging that she had harassed him through various forms of communication and social media.

The former husband’s- counsel withdrew from the case. On March 30, 2015, the trial court conducted a hearing at which the former husband represented himself. The parties testified and submitted documentation. Both parties testified to their understanding of the provision in the divorce judgment regarding military-retirement pay. The former wife testified that she had been unable to obtain approval from the Defense Finance and Accounting Service (“DFAS”) to receive 50% of the former husband’s military-retirement pay. The former husband testified that he had refused to complete documentation related to the former wife’s application to obtain the funds because he believed that the benefits he was receiving were not “disposable” military-retirement pay. ■

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Bluebook (online)
204 So. 3d 430, 2016 Ala. Civ. App. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swindle-v-swindle-alacivapp-2016.