197 So. 3d 487
Ala. Civ. App.2015Background
- Goldman parties divorced 2011; wife awarded sole physical custody, child support $1,303.61/month, periodic alimony $750/month, and 35% of husband's military retirement.
- Husband medically discharged Oct 2012; began receiving retirement pay Jan 2013 consisting of $1,108.28 retirement and $3,145.49 VA disability; also employed as police officer (gross $5,287/month, net $3,387).
- Husband filed petition (Mar 2013) to downwardly modify child support and alimony; wife counterclaimed alleging arrearages and contempt and later claimed nonreceipt of her 35% retirement share.
- Trial (Oct 2014) produced ore tenus evidence; trial court denied modification petitions, found husband in civil and criminal contempt, awarded wife alimony arrearage and $12,000 attorney fees, and ordered monthly payments toward arrearage.
- On postjudgment, court removed 175-day criminal incarceration but left contempt findings and ordered monthly retirement payments to wife; husband appealed.
Issues
| Issue | Plaintiff's Argument (Goldman) | Defendant's Argument (former husband) | Held |
|---|---|---|---|
| Calculation of past-due military-retirement payments | Wife: entitled to 35% from date husband left service (Oct 2012) through Sept 2014 | Husband: retirement payments began Jan 2013; wife owed only from Jan 2013 | Trial miscalculated period; appellate court reversed and remanded to determine correct past-due amount (remand to clarify start date) |
| Modification of periodic alimony | Wife: deny modification; alimony should continue | Husband: material change (retirement, VA disability, changed net income) warrants downward modification/termination | Court abused discretion in denying—disability excluded for alimony; husband demonstrated material change; appellate court reversed and ordered termination of alimony with court retaining jurisdiction for future award |
| Modification of child support | Wife: maintain existing support; trial court found <10% change under guidelines | Husband: gross income lower because 35% of retirement goes to wife and disability excluded | Appellate court affirmed denial of modification; although trial miscomputed incomes (failed to deduct wife's 35% and could include disability for child support), overall guideline comparison supported affirmance |
| Contempt, arrearage payments, and attorney fees | Wife: contempt appropriate for unilateral reduction in alimony; arrearage and fees justified | Husband: inability to pay (due to disability) and Billeck precludes using disability to satisfy obligations | Contempt findings affirmed (unilateral reduction supported willfulness); arrearage calculation largely upheld (scrivener error noted); monthly $500 arrearage payment and $12,000 attorney fee affirmed (court discretion). Dissent argued disability should not be used to cure arrearage but majority rejected that claim |
Key Cases Cited
- Ex parte Billeck, 777 So.2d 105 (Ala. 2000) (holds VA disability benefits received in lieu of military retirement may not be considered as income for alimony calculations)
- Bray v. Bray, 979 So.2d 798 (Ala. Civ. App. 2007) (standard of review for alimony modification and deference to ore tenus findings)
- Rose v. Rose, 481 U.S. 619 (1987) (federal law does not prevent consideration of veterans’ disability benefits as a resource in setting child support)
- Mansell v. Mansell, 490 U.S. 581 (1989) (federal preemption issues concerning military retirement pay and state treatment in divorce contexts)