
    Julius G. SINGLETON v. Eva M. Singleton HARP.
    2950483.
    Court of Civil Appeals of Alabama.
    Dec. 13, 1996.
    Certiorari Denied Feb. 14, 1997 Alabama Supreme Court 1960511.
    
      Albert S. Butler, Montgomery, for appellant.
    Ellen M. Hastings and John L. Capell III of Capell, Howard, Knabe & Cobbs, P.A., Montgomery, for appellee.
   On Application For Rehearing

YATES, Judge.

This court’s original opinion, dated September 20, 1996, is withdrawn, and the following is substituted therefor:

The trial court divorced the parties in January 1984, incorporating into the divorce judgment an agreement of the parties, which provided, in part:

“1. MILITARY RETIREMENT PAY. The husband is retired from the United States Army ... and accordingly receives military retirement pay monthly. The parties hereby agree that the Wife shall receive from said retirement pay the sum of Six Hundred Fifty ($650.00) Dollars per month for ten (10) calendar months commencing February 1,1984. After said ten-month period, the Wife shall receive the sum of Four Hundred Fifty ($450.00) Dollars per month, said payments to be made directly to the Wife commencing the first day of the month following the aforementioned ten-month period, and to continue each and every month thereafter until the death of either party, whichever shall sooner occur....”

That agreement also contained a separate section entitled “Property Settlement,” whereby the parties disposed of various items of real and personal property.

In February 1995, the husband petitioned for a modification of the divorce judgment, claiming that the monthly payments he was required to make to the wife from his military retirement benefits were, in fact, periodic alimony, and requesting the court to terminate his obligation to make those payments because the wife had remarried. In March 1995, the wife moved to dismiss the husband’s petition, contending that the provision regarding military retirement benefits was a property settlement and not periodic alimony, and, therefore, that it could not be modified, except by agreement of the parties. The wife also asked the court to find the husband in contempt for his noncompliance with the divorce judgment and to award her a reasonable attorney fee. Following an ore tenus proceeding, the court dismissed the husband’s petition, holding that “the provision ... concerning military retirement pay is in the nature of a property settlement and not periodic alimony and therefore is not subject to modification.” A subsequent hearing was held on the wife’s contempt citation and motion for an attorney fee. At this hearing, the husband requested the court to reconsider its ruling on his modification petition. The court held that the husband was not in contempt; awarded the wife an attorney fee of $900; and denied the husband’s motion to reconsider its ruling. The husband appeals, contending that the trial court erred in determining that the division of military retirement benefits was a property settlement and in its award of an attorney fee.

The parties had been married for 29 years. When the parties entered into the settlement agreement, the wife was represented by an attorney; the husband was not. The wife testified that she had told the husband that after 29 years of marriage she believed she was as much entitled to the retirement pay as he was, and that he had agreed with her. She further stated that her attorney had read the settlement agreement to the parties and that they had discussed it. The husband testified that the provisions of the agreement and their legal effect were not explained to him in detail. The husband acknowledged that nothing in the agreement provides that the payments to the wife from his military retirement would terminate upon her remarriage. He stated, ‘Well, I just, I thought upon remarriage it automatically, these things ceased and so did many other people, which I guess was my error, my misunderstanding or whatever.”

In 1984, when the parties entered into the settlement agreement, the law in Alabama regarding military retirement benefits was that an award of military retirement benefits could not be treated as a property-settlement or as alimony in gross. Kabaci v. Kabaci, 378 So.2d 1144 (Ala.Civ.App.1979). However, military retirement benefits could be considered as a source of income from which to pay periodic alimony. Pedigo v. Pedigo, 413 So.2d 1154 (Ala.Civ.App.1981), cert. quashed, 413 So.2d 1157 (Ala.1982). The prohibition against awarding military retirement benefits as part of a property division, or as alimony in gross, did not extend to a voluntary settlement agreement that was incorporated into a divorce judgment. Holcomb v. Smith, 404 So.2d 709 (Ala.Civ.App. 1981); Williams v. Williams, 581 So.2d 1116 (Ala.Civ.App.1991). See also, Epperson v. Epperson, 437 So.2d 571 (Ala.Civ.App.1983). A divorce judgment may not be modified to change a property division or an award of alimony in gross after the lapse of 30 days from the date of the entry of the judgment. Tinsley v. Tinsley, 431 So.2d 1304 (Ala.Civ.App.1983); Garris v. Garris, 643 So.2d 993 (Ala.Civ.App.1994). In 1993, our supreme court in Ex parte Vaughn, 634 So.2d 533 (Ala.1993), overruled Kabaci and held that military retirement benefits accumulated during the course of the marriage constitute marital property and are subject to an equitable division between the parties.

In Vainrib v. Downey, 565 So.2d 647 (Ala. Civ.App.1990), the husband petitioned to modify a divorce judgment that had incorporated an agreement between the parties, which contained a section entitled “Plaintiffs Military Retirement Benefits”; by that section the wife was to receive 50% of the husband’s retirement benefits at the time of his retirement. There was also a provision in the agreement entitled “Alimony.” The husband alleged that the wife had remarried and no longer needed any support that would be provided from his retirement benefits. He further alleged that the provision was ambiguous and in need of clarification by the court. The trial court found the terms of the agreement to be clear and unambiguous and specifically held the provision to be a property settlement and not modifiable. This court affirmed, based on principles of contract law, stating that the pertinent provision was “certain, clear, and unambiguous, and susceptible to only one reasonable interpretation,” and that the trial court’s interpretation was “consistent with the clear and plain meaning of the terms of the agreement.” Id. at 648.

In Stockbridge v. Reeves, 640 So.2d 947 (Ala.Civ.App.1994), the parties entered into a settlement agreement that was incorporated into the divorce judgment. The section entitled “Property Settlement” provided that the husband’s military retirement benefits would be paid to the wife and that the payment of those benefits would “terminate upon the husband’s death, the wife’s death, or ... the termination of the military retirement pension income benefits for whatever reason beyond the husband’s control.” Id. at 947. The husband petitioned to terminate alimony, contending that the provision awarded periodic alimony and should be terminated because of the wife’s remarriage. This court affirmed the trial court’s dismissal of the husband’s petition, noting that the pertinent provision of the settlement agreement did not state that the payments would cease upon the remarriage of the wife. This court also noted that the provision was contained in the section of the agreement entitled “Property Settlement” and that it did not contain the term “alimony.” Id.

In this case, the pertinent provision provides that the payments to the wife shall “continue each and every month ... until the death of either party, whichever shall sooner occur.” As in Stockbridge, this provision does not provide that the payments to the wife shall terminate upon her remarriage. It also lacks any reference to “alimony.” The terms of this provision are “certain, clear, and unambiguous, and susceptible to only one reasonable interpretation.” Vainrib, supra, at 648. We acknowledge that the pertinent provision of the settlement agreement does not appear in the section entitled “Property Settlement.” We also note that the parties negotiated this settlement agreement and that the trial court ratified it and incorporated it by reference into the final divorce judgment in 1984. The court heard ore ten-us evidence from the parties concerning their negotiations and the circumstances surrounding their entering into the settlement agreement, and it determined that the agreement was in the nature of a property settlement and not periodic alimony and, therefore, was not modifiable. The trial court’s judgment is presumed to be correct and will not be disturbed on appeal unless plainly and palpably wrong. Hayes v. Wallace, 582 So.2d 1151 (Ala.Civ.App.1991). After reviewing the record, we cannot say that the judgment of the trial court was plainly and palpably wrong.

The husband next contends that the court abused its discretion in awarding the wife a $900 attorney fee, because the court did not find him in contempt. An attorney fee is ordinarily available in a modification proceeding because it is merely an extension of the original divorce action, and such a fee may be awarded without a finding of contempt. Ayers v. Ayers, 648 So.2d 1375 (Ala.Civ.App.1994), cert. denied, 643 So.2d 1377 (Ala.1994). Such an award is discretionary with the trial court and will not be set aside on appeal absent an abuse of that discretion. Id. In order for an attorney fee to be awarded, it must first be requested, or else the issue must be tried by the express or implied consent of the parties. Id. Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee, even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala.Civ.App.1986). Here, the wife properly requested an attorney fee for defending the petition to modify. After reviewing the record, we conclude that the court did not abuse its discretion.

The wife’s request for an attorney fee on appeal is denied.

ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; AFFIRMED.

ROBERTSON, P.J., concurs.

MONROE, J., concurs specially.

THIGPEN and CRAWLEY, JJ., concur in part and dissent in part.

MONROE, Judge,

concurring specially.

I agree with the majority’s holding that the trial court was not plainly and palpably wrong in determining that the monthly payments made to the wife from the husband’s military retirement pay should be considered a property settlement that is not subject to modification. I would limit such a holding, however, to the facts of this case, in which the retirement pay from which those monthly payments are made is not provided in a lump sum payment, but is instead made in monthly payments.

As a practical matter, the only way to ensure that the wife receives a percentage of the husband’s retirement pay as a property settlement is to award her a set portion of the husband’s monthly retirement pay. Granted, the total payment that will be made to the wife cannot be named as a certain amount, but by the same token, neither can the total amount of retirement pay that will be paid to the husband.

Because retirement pay is unique in terms of how it can be distributed between the parties to a divorce, I believe that the intent of the parties is crucial to a determination of whether payments made from the retirement pay is meant to be periodic alimony or alimony in gross. I agree with the majority’s holding that we cannot say that the trial court erred in its determination that the payment is in the nature of a property settlement.

THIGPEN, Judge,

concurring in part and dissenting in part.

I concur that the trial court’s judgment regarding the issue of attorney fees for the wife to defend the husband’s modification petition should be affirmed; however, I would reverse that portion of the trial court’s judgment which dismissed the husband’s modification petition.

The language in the divorce judgment is unambiguous, and it appears to me that the trial court made an error of law in considering extrinsic evidence and in concluding that the provision described alimony in gross. Boley v. Boley, 589 So.2d 1297 (Ala.Civ.App. 1991); Trammell v. Trammell, 523 So.2d 437 (Ala.Civ.App.1988). Absent an ambiguity, it was the trial court’s function to interpret the lawful meaning of the agreement. Trimble v. Todd, 510 So.2d 810 (Ala.1987). Even if one views the language as ambiguous, thus permitting parol evidence, our appellate courts have consistently determined that awards of this nature are periodic alimony.

“An award of alimony in gross is intended to effect a final determination of the property rights of the parties and also is an attempt to compensate the wife for the loss of inchoate property rights in her husband’s estate. Ex parte Reuter, 623 So.2d 737 (Ala.1993).
“ ‘In order for alimony to be considered “in gross” it “must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.” ’ Bonham v. Bonham, 623 So.2d 337, 338 (Ala.Civ.App. 1993) (citations omitted). In this context, ‘the term “vested” simply signifies that an award of “alimony in gross” is not subject to modification.’ Hager v. Hager, 293 Ala. 47, 54, 299 So.2d 743, 747 (Ala.1974).”

Blackburn v. Blackburn, 675 So.2d 444, 445-446 (Ala.Civ.App.1996).

The divorce judgment states that the payments continue “until the death of either party, whichever shall sooner occur.” Clearly, the duration of the payments is uncertain and the amount is indefinite. Additionally, the source and the purpose of the payments are of prime importance and the “intent to award alimony in gross must be unequivocally expressed, or necessarily inferred from the language used.” Bonham, 623 So.2d at 338. See also, Lacey v. Ward, 634 So.2d 1013 (Ala.Civ.App.1994).

Although it is noteworthy that the law regarding the consideration of military retirement benefits in divorce proceedings has changed since this divorce judgment was entered, that body of law is not controlling here. See Patterson v. Patterson, 585 So.2d 1389 (Ala.Civ.App.1991); Holcomb v. Smith, 404 So.2d 709 (Ala.Civ.App.1981); and Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979); see also, Stockbridge v. Reeves, 640 So.2d 947 (Ala.Civ.App.1994); and Williams v. Williams, 581 So.2d 1116 (Ala.Civ.App.1991). Moreover, absent specific language declaring the award from the husband’s military retirement benefits to be a property settlement, the legal assumption is that the award is periodic alimony. Broadus v. Broadus, 470 So.2d 1239 (Ala.Civ.App.1985).

In a recent case involving a similar provision wherein the payments were partially contingent on the husband’s life, this court concluded that “the language in the provision is unambiguous; therefore, the trial court erred as a matter of law in permitting the admission of extrinsic evidence, and in determining that the provision constituted an award of alimony in gross.” Hughes v. Hughes, [Ms. 2950160, July 12, 1996] — So.2d -, -(Ala.Civ.App.1996). Based on the foregoing, I must respectfully dissent.

CRAWLEY, Judge,

concurring in part and dissenting in part.

I agree with the majority’s opinion regarding the attorney fees; however, I determine that the military retirement pay provision of the settlement agreement incorporated into the 1984 divorce judgment is periodic alimony and that the trial court erred, as a matter of law, in ruling that that provision is a property settlement. Therefore, I must respectfully dissent to that issue.

Several factors support my interpretation that the military retirement provision is periodic alimony. First, the military retirement provision is not included in the “Property Settlement” provision of the agreement. Rather, a separate section is entitled “Military Retirement Pay.” The majority relies upon two of this court’s cases, Vainrib and Stockbridge, to support its holding that this provision is a property settlement. However, those cases are distinguishable from the present ease. In Vainrib, the agreement contained a separate alimony provision and a separate military retirement benefits provision. In Stockbridge, the military retirement provision was included in the property settlement section of the agreement. Here, the military retirement pay provision is not included in the property settlement provisions of the agreement, and there is no section entitled “alimony.” I conclude that the proper interpretation of the agreement is that the monthly payments the wife receives from the husband’s military retirement benefits are periodic alimony. Also, as the majority states, at the time the agreement was made, a trial court could not divide military retirement benefits as marital property, but could only consider it as a source of income from which to pay periodic alimony. Even though the majority states that the agreement did not provide for the payments of the benefits to cease upon the wife’s remarriage, upon petition by the paying spouse, periodic alimony ceases upon the remarriage of the recipient spouse. Ala.Code 1975, § 30-2-55. The agreement did provide that the payments would cease upon the death of either party, which is a contingency not characteristic of a property division. Kahn v. Kahn, 682 So.2d 1377 (Ala.CivApp.1996). See also Slaton v. Slaton, 455 So.2d 34 (Ala.Civ.App.1984).

The testimony does not support the trial court’s determination that the military retirement pay is a property settlement. The husband’s attorney questioned the wife as to the purposes of the military retirement provision in the settlement agreement:

“Q. And I believe your testimony was that y’all had been married twenty nine years and you needed this money to live on, is that correct?
“A. Yes.
“Q. And you needed this money to maintain you after the divorce?
“A. Yes.
“Q. This retirement?
“A. Yes. Hm hmm.
“Q. Okay. But you wanted this money, this half of the retirement or percentage of the retirement, that fixed amount, to help you live, is that correct?
“A Correct.
“Q. And that’s what y’all talked about, isn’t it?
“A. That’s right.”

The wife’s testimony clearly demonstrates that she intended to use the payments from the retirement for her support and to maintain her lifestyle, which are the purposes of periodic alimony. See O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). The record contains no evidence that the retirement benefits were to be a division of marital assets, but rather, were intended to support the wife and to maintain her lifestyle.  