Steve Lawrence Colafrancesco v. Kaylyn Annie Colafrancesco
2200494
ALABAMA COURT OF CIVIL APPEALS
Rel: February 11, 2022
OCTOBER TERM, 2021-2022
Appeal from Shelby Circuit Court (DR-19-900259)
THOMPSON, Presiding Judge.
Steve Lawrence Colafrancesco (“the husband“) appeals from a judgment entered by the Shelby Circuit Court (“the trial court“) divorcing
In September 1974, the husband began his career with the United States Air Force. In December 1974, he and the wife married. The parties had five children. During his military career, the family moved frequently and the husband was deployed 15-20 times. The wife testified that she was unable to mаintain a career because of the family‘s frequent moves and her parenting responsibilities. In January 1998, the husband retired from the military. In November 2018, the husband and the wife separated, and in October 2019, the wife filed a complaint for a divorce.
On October 20, 2020, the trial court conducted ore tenus proceedings. With regard to the husband‘s income, the record reflects that the husband receives benefits from three sources: the Social Security Administration (“the SSA“), the Department of Veteran Affairs (“the VA“), and the Defense Finance and Accounting Service (“the DFAS“). The trial court admitted into evidence a letter from the SSA, dated October 18, 2020, that states that, on September 21, 2001, the SSA, pursuant to its rules, found the husband to be disabled and that beginning in December
On November 20, 2020, the trial court entered a judgment divorcing the parties that provides, in pertinent part:
“ALIMONY
“The testimony before this Court shows the parties were married in 1974, a forty-six (46) year marriage. The parties were married within six (6) months of [the husband‘s] joining the United States Air Force and were together for the remainder of [the husband‘s] time in the United States Air Force. During this time the parties had five (5) children. [The husband], by his own estimate was deployed 15-20 times and left [the wife] to take care and raise their children. Although [the wife] would work when she could, the frequent moves for [the husband‘s] career would not allow her to have an employment career in which she could progress.
“[The husband‘s] pay consists of what has been termed as follows:
- Combat Pay $2,400.00 plus
- Veteran‘s Disability Pay $3,480.00
Social Security $1,640.00 TOTAL $7,520.00
“The parties adopted two of their grandchildren (who currently reside with their mother) and [the husband] consequentially receives an additional $300 per month from the Air Force and $804 from Social Security to support those adopted children. The total funds received by [the husband] per month exceeds $8,720. [The wife‘s] sole source of income is $587.00 per month in social security disability.
“While military-retirement benеfits cannot be considered in determining an award of alimony, this court finds insufficient testimony in this case from which it could determine that [the husband‘s] VA disability income is ‘in lieu of retirement.’ See Nelms v. Nelms, 99 So. 3d 1228 (Ala. Civ. App. 2012).
“9. [The husband] shall pay to [the wife] the sum of $2,500 per month as periodic alimony, beginning on 15 December 2020 and continuing until terminated by operation of law.
“10. Each party is awarded exclusive right, title and interest and the full value of any and all retirement/pensions in their names, if any, and the other party is divested of any right, title and interest therein.”
On December 9, 2020, the husband filed a postjudgmеnt motion in which he argued, among other matters, that his veteran‘s disability benefits -- i.e., his VA disability benefits and his CRSC benefits -- cannot be considered when determining the an award of periodic alimony. On
“‘When a trial court receives ore tenus evidence, its judgment based on that evidence is entitled tо a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So. 2d 1060 (Ala. Civ. App. 1995). This “presumption of correctness is based in part on the trial court‘s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So. 2d 1083, 1085 (Ala. Civ. App. 1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So. 2d 141 (Ala. Civ. App. 2000).’
Ryland v. Ryland, 12 So. 3d 1223, 1225 (Ala. Civ. App. 2009).”
“In addition, in Whorton v. Bruce, 17 So. 3d 661, 664-65 (Ala. Civ. App. 2009), we noted:
“’ ” ‘[U]nder thе ore tenus rule, the trial court‘s judgment and all
implicit findings necessary to support it carry a presumption of correctness.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So. 2d 375, 378 (Ala. 1992). However, when the trial court improperly applies the law to facts, no presumption of correctness exists as to the trial сourt‘s judgment. Allstate Ins. Co. v. Skelton, 675 So. 2d 377 (Ala. 1996); Marvin‘s, Inc. v. Robertson, 608 So. 2d 391 (Ala. 1992); Gaston v. Ames, 514 So. 2d 877, 878 (Ala. 1987); Smith v. Style Advertising, Inc., 470 So. 2d 1194 (Ala. 1985); League v. McDonald, 355 So. 2d 695 (Ala. 1978). ‘Questions of law are not subject to the ore tenus standard of review.’ Reed v. Board of Trustees for Alabama State Univ., 778 So. 2d 791, 793 n.2 (Ala. 2000). A trial court‘s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So. 2d 576, 577 (Ala. 1993). This court reviews the application of law to facts de novo. Allstate, 675 So. 2d at 379 (‘[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court‘s judgment carries no presumption of correctness.‘).” ’ ” ’City of Prattville v. Post, 831 So. 2d 622, 627-28 (Ala. Civ. App. 2002).‘”
On appeal, the husband contends only that the trial cоurt exceeded its discretion by awarding the wife monthly periodic alimony in the amount of $2,500 because, he says, a portion of the alimony award would have to be paid from his veteran‘s disability benefits. Specifically, he contends that the trial court erred in determining that his veteran‘s disability benefits are not received “in lieu of retirement.”
In 1982, Congress enacted the Uniformed Services Former Spouses’ Protection Act (“the FSPA“), which is codified at
“(A) The term ‘disposable retired pay’ means the total monthly retired pay to which a member is entitled less amounts which--
.... “(ii) are deducted from the rеtired pay of such member as a result of forfeitures of retired pay ordered by a court-marital or as a result of a waiver of retired pay required by law in order to receive compensation under ... title 38; [or]
“(iii) in the case of a member entitled to retired pay under chapter 61 of this title, are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member‘s disability on the date when the member was retired (or the date on which the member‘s name was рlaced on the temporary disability retired list).”3
In Mansell v. Mansell, 490 U.S. 581 (1989), the United States Supreme Court held that the FSPA excluded from marital property subject to division in a divorce action a veteran‘s disability benefits that are paid in lieu of military-retirement benefits. Id. at 586. Specifically, the Court hеld that such veteran‘s disability benefits are not “disposable retired pay” subject to division.
In Stone v. Stone, 26 So. 3d 1232, 1237 n.2 (Ala. Civ. App. 2009), this court recognized:
“Veterans who receive disability benefits from the VA must waive a corresponding amount of their military retirement pay, to prevent ‘double dipping.’ Mansell [v. Mansell], 490 U.S. [581,] 583 (1989);
38 U.S.C. [former] § 3105 [now 38 U.S.C. § 5305] . The disability payments are exemрt from federal, state, and local taxation; thus, many military retirees waive their retirement pay in favor of disability pay, which increases their after-tax income. Mansell, 490 U.S. at 583-84.”
In Nelms v. Nelms, 99 So. 3d 1228, 1230 (Ala. Civ. App. 2012), this court considered whether a veteran‘s disability benefits that are not paid in lieu of military benefits and, cоnsequently, are not subject to
In Howell v. Howell, 581 U.S. 214, 220, 137 S. Ct. 1400, 1405 (2017), the United States Suрreme Court reiterated that “federal law completely pre-empts the States from treating waived military retirement pay as divisible community property.”
In Brown v. Brown, 260 So. 3d 851 (Ala. Civ. App. 2018), which the parties discuss in their briefs, this court addressed whether a trial court
Mindful of the foregoing law, we now consider whether the trial court exceeded its discretion by awarding the wife periodic alimony in an
Applying the reasoning set forth in the foregoing cases, the trial court exceeded its discretion by considering the husband‘s VA disability benefits and CRSC benefits when awarding the wife periodic alimony. The evidence indicates that both the husband‘s VA disability benefits and his CRSC benefits were awarded after he retired from the military. Additionally, the VA letter establishes that the VA determined that the husband had a service-connected disability and awarded him VA disability benefits. For the husband to receive those benefits, he had to waive a corresponding amount of his military-retirement income. See Stone, supra, and
Because the record establishes that the husband‘s veteran‘s disability benefits cannot be considered “disposable retired pay,” the trial court lacked the authority to consider any portion of those benefits in determining the alimony award. Accordingly, the judgment of the trial court is reversed and this case is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Moore, Edwards, Hanson, and Fridy, JJ., concur.