Divorce - Division of 401(k) - Collateral Attack on Divorce Judgment


Nord v. Nord, [Ms. 2190391, Oct. 16, 2020], ___ So. 3d ___ (Ala. Civ. App. 2020). The court (Moore, J.; Thompson, P.J., and Donaldson and Hanson, JJ., concur; Edwards, J., concurs specially) affirms the Tuscaloosa Circuit Court’s judgment directing the former husband to transfer to the former wife $81,783 from his 401(k) account. The parties’ 2003 judgment of divorce directed the former husband to transfer $31,000 to the wife from his 401(k). Ms. *2. A QDRO was never prepared, and in 2018 the former wife filed the subject action contending that “she should be awarded a sum from the former husband’s retirement account ‘commensurate with $31,000 and the pro rata appreciation in value’ of that amount.” Ms. *3.

On appeal, the former husband first argued that because he had not accumulated funds in his retirement account for a period of ten years during the marriage, the trial court lacked subject-matter jurisdiction in the 2018 action to order him to pay any funds from his retirement account. Ms. *11. The court rejects this argument, explaining

[A]lthough the trial court’s award of a portion of the former husband’s retirement account to the former wife in the divorce judgment might have been reversible error, see Colgan [v. Colgan, 215 So. 3d 1109 (Ala. Civ. App. 2016)], any such error did not render the judgment void for lack of subject-matter jurisdiction. See Bowen [v. Bowen, 28 So. 3d 9 (Ala. Civ. App. 2009)]. Because any error committed by the trial court in awarding the former wife a portion of the former husband’s retirement account was a question that was ripe for appeal upon the entry of the divorce judgment, the former husband’s attempt to challenge that award in the present appeal amounts to an impermissible collateral attack upon the trial court’s 2003 judgment of divorce. See Moorer v. Moorer, 487 So. 2d 947, 947-48 (Ala. Civ. App. 1986) (affirming the denial of a petition to modify a divorce judgment when the petitioner failed to appeal from the divorce judgment but, subsequently, sought an impermissible collateral attack upon the divorce judgment). Accordingly, the trial court was within its jurisdiction to consider the former wife’s complaint seeking to enforce the divorce judgment with regard to the division of the former husband’s retirement benefits.

Ms. **15-16.

The court also rejects the former husband’s argument that the trial court erred in awarding the former wife more than an amount commensurate with money-market-returns on the $31,000, explaining the award “does not run afoul of the Thomas [v. Thomas, No. 00AP-541, April 26, 2001 (Ohio Ct. App. 2001) (not reported inN.E.2d)] court’s decision because the amount awarded to the former wife was in consideration of the actual investment earnings and losses affecting the whole of the former husband’s retirement benefits, resulting in both parties sharing equally in gains and losses affecting those benefits.” Ms. *23. The court also noted that, in any event, “‘no opinion from another state court is binding on the courts of Alabama.’” Ms. *22, quoting Stone v. Mellon Mortg. Co., 771 So. 2d 451, 456 n.1 (Ala. 2000).

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