Kenneth J. McGowin ("the husband") appeals from a judgment of the Covington Circuit Court ("the trial court") divorcing him from Pamela D. McGowin ("the wife"). We affirm the trial court's judgment in part, reverse the judgment in part, and remand the cause to the trial court.
On June 26, 2014, the wife filed a complaint seeking a divorce from the husband. The husband filed an answer to the complaint and a counterclaim for a divorce, asserting, among other things, that the parties had entered into an antenuptial agreement before their marriage and requesting that the trial court enforce the agreement. The wife filed a reply to the husband's counterclaim. A trial was held on November 3, 2014; at the outset of the trial, the parties stipulated to the validity of the antenuptial agreement. The trial court entered a final judgment of divorce on March 20, 2015, that, among other things, divorced the parties and noted that the antenuptial agreement was valid and controlled the distribution of property between the parties. Among other things, the trial court ordered the husband to pay $2,500 per month to the wife as periodic alimony and awarded the husband the marital home on Easley Drive in Andalusia, noting that the husband had paid to the wife "a sum sufficient enough to more than recompense the wife for her share of the equity in the marital home." The husband filed his notice of appeal to this court on April 17, 2015.
The husband first argues that the trial court erred in awarding alimony to the wife in contravention of the parties' antenuptial agreement. The antenuptial agreement states, in pertinent part:
The husband contends that the antenuptial agreement unambiguously prohibits the wife from making a claim against his separate property and thereby prevents her from obtaining periodic alimony.
The interpretation of a provision in an antenuptial agreement involves a question of law, which this court reviews de novo. Laney v. Laney, 833 So.2d 644, 646 (Ala.Civ.App.2002). The antenuptial agreement at issue in this case does not specifically preclude the wife from seeking an award of periodic alimony from the husband. The husband maintains, however, that the wife waived any claim to periodic alimony in paragraph 11 of the antenuptial agreement by agreeing that she would not claim "any right, title or interest in or to the separate property of [the husband]."
In its judgment, the trial court awarded the wife periodic alimony, but it
(Emphasis added.) Our supreme court long ago construed the phrase "the estate of the other spouse" to include not only the property owned by the other spouse at the time of the divorce, but also the future income of the other spouse. See Smith v. Rogers, 215 Ala. 581, 112 So. 190 (1927). By that construction, a trial court may award a dependent spouse periodic alimony from wages earned and assets acquired by the other spouse after the marriage has been dissolved. See Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). In any event, in Alabama, any award of periodic alimony, by definition, comes out of "the estate of the other spouse."
In the antenuptial agreement, each party acknowledges that he or she is aware of the value of "the Estate" of the other party, including the income, assets, and liabilities of the other party, "to which he or she is relinquishing a right." The antenuptial agreement specifically refers to certain real property as the "separate property" of the wife. The antenuptial agreement also provides that all property individually owned by the parties before the marriage shall remain the respective separate property of each spouse. However, the antenuptial agreement does not provide that the term "separate property" shall be limited solely to property expressly described in the agreement or to property owned before the marriage. The antenuptial agreement states: "Each party intends that each shall retain all right to manage, dispose of, own and acquire property to the same extent as if he or she remained unmarried." That sentence signifies the intention of the parties that any property acquired after they entered into marriage would also be classified as "separate property," subject only to a separate provision that allows the parties to elect to jointly own property.
Section 30-2-51(a) prohibits a court from considering, when determining whether to award alimony, "any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage." Property acquired before the marriage or by inheritance or gift during the marriage and not used for the benefit of the marriage is considered "separate property." See Black's Law Dictionary 1571 (10th ed.2014). However, nothing in the antenuptial agreement indicates that the parties intended the phrase "separate property" to be so limited in meaning. To the contrary, the antenuptial agreement unambiguously states that each party relinquishes a right to "the Estate" of the other spouse, including the income of the other spouse. The fact that the parties, like our legislature, see Ala.Code 1975, § 30-2-51(b), opted to specifically address retirement benefits in the antenuptial agreement does not detract from that conclusion.
The antenuptial agreement contemplates that, in the event of a divorce, the wife would not have any claim to "the separate property" of the husband, including
The husband also argues that the trial court erred in treating a $205,000 payment he made to the wife as a gift instead of as consideration for a property settlement. The parties offered conflicting testimony regarding the circumstances for the $205,000 payment. Some of that conflicting testimony tended to prove that the husband had paid the wife the $205,000 as a gift and not as part of a property settlement. Under the ore tenus rule, this court may not disturb a trial court's findings of fact based on conflicting evidence. Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67-68 (Ala.2010). The antenuptial agreement expressly states that each spouse may make a gift to the other spouse. Hence, the trial court did not commit any error on this point.
We therefore affirm the judgment in part, reverse the judgment in part, and remand the case for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
PITTMAN, THOMAS, and DONALDSON, JJ., concur.
THOMPSON, P.J., concurs in the result, without writing.