James E. STAMM v. Jane McCammack STAMM
No. 2030113
Alabama Court of Civil Appeals
October 22, 2004
922 So.2d 921
The ex-husband appeals the trial court‘s entry of an order holding him in contempt and directing his brokerage firm to pay the ex-wife $19,200 in a lump sum to pay off the ex-husband‘s alimony arrearage and a monthly payment in the amount of $1,600 for the ex-husband‘s future alimony obligation. He argues that the trial court lacked subject-matter jurisdiction to enter the order because, he argues, the entry of such an order is essentially a modification of the property-settlement provisions of the 1978 divorce judgment,1 the trial court‘s order does not qualify as a QDRO, and the trial court did not have sufficient evidence to find him in contempt. The ex-wife argues that the trial court had jurisdiction
A QDRO is defined in both the Internal Revenue Code, see
A QDRO is defined in
“(p) Qualified domestic relations order defined. — For purposes of this subsection and section 401(a)(13) —
“(1) In general. —
“(A) Qualified domestic relations order. — The term `qualified domestic relations order’ means a domestic relations order —
“(i) which creates or recognizes the existence of an alternate payee‘s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan, and
“(ii) with respect to which the requirements of paragraphs (2) and (3) are met.
“(B) Domestic relations order. — The term `domestic relations order’ means any judgment, decree, or order (including approval of a property settlement agreement) which —
“(i) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and
“(ii) is made pursuant to a State domestic relations law (including a community property law).
“(2) Order must clearly specify certain facts. — A domestic relations order meets the requirements of this paragraph only if such order clearly specifies —
“(A) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order,
“(B) the amount or percentage of the participant‘s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined,
“(C) the number of payments or period to which such order applies, and
“(D) each plan to which such order applies.
“(3) Order may not alter amount, form, etc., of benefits. — A domestic relations order meets the requirements of this paragraph only if such order —
“(A) does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan,
“(B) does not require the plan to provide increased benefits (determined
on the basis of actuarial value), and “(C) does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.”
The parties both discuss cases from other jurisdictions at length in their briefs to this court. As noted, the ex-husband‘s IRAs are not covered under ERISA. Accordingly, although tangentially supportive of both parties’ positions, the cases from other jurisdictions addressing QDROs under ERISA or under another state‘s laws are not germane to the decision facing this court — namely, whether an Alabama court may use a QDRO to assign benefits from the ex-husband‘s IRAs to the ex-wife to satisfy an alimony arrearage and to maintain current alimony payments.
The heart of the ex-husband‘s argument is that the trial court‘s order is not a QDRO because, he alleges, it fails to comply with Alabama‘s domestic-relations laws in that it creates in the ex-wife an interest in the ex-husband‘s retirement account that did not exist under the property-division provisions of the original divorce judgment. The ex-husband is correct when he states that Alabama law limits a trial court‘s ability to modify a property settlement to 30 days after entry of the judgment. See, generally, Ex parte Littlepage, 796 So.2d 298, 301 (Ala. 2001) (quoting Hamilton v. Hamilton, 647 So.2d 756, 759 (Ala.Civ.App. 1994)) (“`A court cannot modify property provisions [in divorce judgments], except to correct clerical errors, after 30 days from the final judgment.‘“); see also McGuire v. Horton, 586 So.2d 9, 10 (Ala.Civ.App. 1991). However, a trial court has the inherent power to enforce its judgments “and to make such orders and issue such process as may be necessary to render [the judgments] effective.” Dial v. Morgan, 515 So.2d 14, 15 (Ala.Civ.App. 1987) (citing Monroe v. Monroe, 356 So.2d 196, 200 (Ala.Civ.App. 1978)); see also King v. King, 636 So.2d 1249, 1254 (Ala.Civ.App. 1994). In addition, this court has held that a party‘s retirement benefits, once they are part of the party‘s current income, may be considered as income from which to pay periodic alimony. Yohey v. Yohey, 890 So.2d 160, 167-68 (Ala.Civ.App. 2004).
The ex-husband in the present case argues that he is not regularly drawing money from his IRAs and that, therefore, they are not providing him with income. He argues that this court‘s opinion in Smith v. Smith, 866 So.2d 588, 592 (Ala.Civ.App. 2003), held that retirement benefits that are not yet being drawn cannot be considered as a source of income for the payment of periodic alimony, thus preventing his IRAs from being considered as a source from which he can pay alimony. Although Smith did indeed hold that retirement accounts may not be considered as a resource from which a party may be ordered to pay alimony when the party is not retired and is not drawing benefits from those accounts, we have more recently held that a trial court may consider retirement accounts as a source from which a party may be required to pay alimony if the trial court has evidence from which it can determine that those retirement accounts are being used as a source of current income to the party. Yohey, 890 So.2d at 168.
The husband in Yohey also argued that he was not currently drawing money from his IRA to contribute to his living expenses but that, instead, he drew money only for “emergency needs.” Yohey, 890 So.2d at 168.
The ex-husband‘s other argument in support of his contention that the trial court‘s order does not qualify as a QDRO is that the order does not specify the number of payments or period to which the order applies, as is required by
The ex-husband also argues that there was insufficient evidence to support holding him in contempt for failing to pay alimony. He argues that the evidence demonstrates that he is unable to pay alimony to the ex-wife. The ex-wife contends that the trial court had ample evidence upon which to base its finding of contempt.
“[W]hether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.”
Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App. 1994). Rule 70A, Ala. R. Civ. P., has governed contempt proceedings in civil actions since July 11, 1994.
The ex-wife, in contending that the trial court had more than sufficient evidence upon which to base its finding of contempt, relies, in part, on the testimony presented to the trial court at the hearing on the ex-husband‘s petition to terminate his alimony obligation in January 2003. The ex-husband objects to the consideration of this evidence because, he says, none of it was
Generally, a trial court may take judicial notice of matters of record in its own proceedings. Ex parte State Dep‘t of Human Res., 890 So.2d 114, 116 (Ala. 2004) (noting the general rule but recognizing the caveat that, particularly in a juvenile case, a trial court may not take judicial notice of any evidence admitted in a dispositional hearing that would not be admissible in an adjudicatory hearing). Testimony from the January 2003 hearing indicated that the ex-husband had the ability to pay alimony based on evidence indicating that the ex-husband had made substantial purchases for his stepdaughters, that his current wife had removed slightly more than $73,000 from a joint money-market account shortly before the hearing, and that the ex-husband had spent large sums of money he had been awarded from his disability-insurance company.2 In addition, testimony from the contempt hearing indicated that the ex-husband had removed approximately $30,000 from his IRAs about six months before the hearing on the ex-wife‘s contempt petition. The other testimony at the contempt hearing established that the ex-husband was unemployed, that he suffered from a heart condition and took several medications for that and other medical conditions, and that he drew $1,030.50 per month in Social Security benefits after the ex-wife‘s garnishment of those benefits. In addition, the evidence revealed that his house had been foreclosed on and that a motor home that he and his current wife had previously purchased had been repossessed. In light of the trial court‘s ability to consider all evidence of record in the earlier proceedings between these parties, including the testimony from the hearing on the ex-husband‘s petition to terminate his alimony obligation only eight months earlier, in which the trial court heard evidence that led to its decision not to terminate the ex-husband‘s alimony obligation, the trial court‘s finding that the ex-husband was in contempt for failing to pay alimony is supported by the evidence.
Having concluded that the trial court‘s order qualifies as a QDRO pursuant to
The ex-wife‘s request for an attorney fee on appeal is denied.
AFFIRMED.
YATES, P.J., and THOMPSON and PITTMAN, JJ., concur.
MURDOCK, J., dissents, without writing.