99 So. 3d 1228
Ala. Civ. App.2012Background
- Husband appeals a divorce judgment that awarded the wife periodic alimony of $900/month and $3,208 in attorney’s fees and costs.
- The record shows the husband receives VA disability benefits ($2,833/month) and $445/month Social Security disability income; wife testified to a disability-related income stream and some vegetable sales income.
- The husband argues alimony cannot be paid from VA disability benefits under Mansell/Mansell-related law and the anti-attachment provisions.
- The trial court treated VA disability as income for alimony; it did not require alimony to be paid exclusively from non-disability income.
- The Alabama Supreme Court discusses Rose v. Rose to analyze whether VA disability benefits may be used to satisfy alimony obligations.
- The court ultimately affirms the trial court's judgment, including the alimony award and the attorney’s fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA disability benefits can fund alimony | Nelms argues benefits cannot be used for alimony under Mansell/Billeck. | Nelms contends federal law precludes alimony from disability benefits. | Alimony may be paid from VA disability benefits. |
| Whether attorney’s fees may be paid from disability or Social Security benefits | Disability benefits cannot be taxed or used for a spouse’s attorney fee. | Fees should be restricted by anti-attachment provisions. | Court refused to reverse on this basis; no error found in awarding fees. |
| Whether Rose v. Rose controls alimony from disability benefits | Rose supports permitting use of disability benefits to satisfy alimony. | Rose distinctions do not apply here because the benefits are not in lieu of retirement. | Rose is controlling and permits alimony despite disability-benefit funding. |
| Scope of Mansell/Billeck applicability | Mansell/Billeck apply where benefits are in lieu of retirement. | They preclude such use when true facts match those cases. | Not controlling here as there is no evidence the husband receives benefits in lieu of retirement. |
| Sufficiency of appellate argument | Record supports the trial court’s discretionary alimony/fees rulings. | Brief lacks analysis to warrant reversal. | Judgment affirmed; argument deficient does not justify reversal. |
Key Cases Cited
- Mansell v. Mansell, 490 U.S. 581 (U.S. 1989) (disability benefits not divisible as community property under FSPA)
- Ex parte Billeck, 777 So.2d 105 (Ala. 2000) (state courts cannot consider disability benefits in lieu of retirement for alimony)
- Rose v. Rose, 481 U.S. 619 (U.S. 1987) (anti-attachment statute does not bar use of disability benefits to satisfy valid support orders)