Alabama Supreme Court 1051611.
CRAWLEY, Presiding Judge.
Ed F. Meyer ("the husband") and Cathy W. Meyer ("the wife") were divorced on September 29, 1999. Based upon an agreement of the parties, the trial court entered a judgment that, among other things, provided for a division of the husband's military retirement benefits. Paragraph 5 of the divorce judgment states:
The Uniformed Services Former Spouses' Protection Act ("the USFSPA"), 10 U.S.C. § 1408, "`is basically concerned with the garnishment of military retirement pay.'" Ex parte Smallwood, 811 So.2d 537, 540 (Ala.2001) (quoting Beesley v. Beesley, 114 Idaho 536, 540, 758 P.2d 695, 698 (1988)). Section 1408(d)(1) of the USFSPA provides that, upon receipt of a "court order," the secretary of the applicable branch of the armed services will make direct payments from a service member's disposable retired pay to the service member's former spouse. "Court order" is defined in 10 U.S.C. § 1408(a)(2). Section 1408(a)(2)(C) provides, in pertinent part:
In order to be entitled to direct payments by the secretary, the former spouse must have been married to the service member for 10 or more years during which the member performed at least 10 years of creditable service. 10 U.S.C. § 1408(d)(2). Courts in the majority of states have held that the 10-year requirement does not preclude the division of military retirement benefits for couples who have been married less than 10 years; rather, they have held that it merely precludes direct payments by the secretary to the former spouse. See Ex parte Smallwood, 811 So.2d at 541.
The USFSPA limits to 50 percent the amount of a service member's disposable retired pay that is directly payable by the secretary to a former spouse pursuant to a court order. See 10 U.S.C. § 1408(e)(4)(B). A court is not limited, however, to awarding the former spouse
Ex parte Smallwood, 811 So.2d at 540 (quoting Deliduka v. Deliduka, 347 N.W.2d 52, 55 (Minn.Ct.App.1984)).
A state court is not required to award a former spouse any portion of a service member's military retirement pay. See J.N.H. v. N.T.H., 705 So.2d 448, 451 (Ala.Civ.App.1997) (stating that "[m]ilitary retirement benefits are subject to the same rule of equitable division within the trial court's discretion as is other marital property. So long as the trial court's division of property is equitable, it is not required to divide military retirement benefits."). See generally Michael A. Kirtland, Divorce and Taxes: What Every Divorce Attorney Should Know About Taxes, 61 Ala. Law. 116 (March 2000):
Kirtland, 61 Ala. Law. at 118 (emphasis added).
In August 2001, the wife, who had apparently been informed that she would not be able to obtain a garnishment of the husband's retirement income from the Secretary of the Air Force because the divorce judgment did not award her either a specific dollar amount or a specific percentage of the husband's disposable retired pay, filed a "Petition to Clarify" the divorce judgment. The wife alleged that, having been married to the husband for more than 10 years, she was "entitled to a certain percentage of [the husband's] disposable net military retirement pay." She specifically requested that the trial court clarify paragraph 5 of the divorce judgment and determine the percentage of the husband's military retirement pay to which she was entitled under the USFSPA.
At hearings before Circuit Judge Gary L. McAliley on November 28, 2001, and May 30, 2002, the parties appeared with counsel and presented evidence and oral argument with respect to the wife's petition. The parties introduced a transcript of the following discussion that took place in open court on August 20, 1999, when their lawyers outlined for Judge McAliley the terms of the proposed settlement agreement.
The parties and their lawyers testified that, at the end of the foregoing discussion, Judge McAliley instructed the lawyers to find out the percentage of the husband's military retirement pay that the wife was entitled to receive and to draft a proposed order for him to sign. Debbie Jared, the wife's lawyer, testified that she understood that Thomas D. Motley, the husband's lawyer, had agreed to "find out" what the percentage was and to send her a copy of the proposed order before submitting it to the judge. Kimberly Clark, an associate in Motley's firm, testified that Motley gave her his notes from the August 20, 1999, hearing and asked her to draft the proposed order. Ms. Clark then sent Ms. Jared the following draft of what was to become part of paragraph 5 of the divorce judgment:
Ms. Jared requested and Ms. Clark approved the addition of the phrase "which shall be determined based upon the duration of the marriage." Paragraph 5 was then submitted to and signed by Judge McAliley in its current form:
The husband testified that, during the initial settlement negotiations, he did not voluntarily agree to divide any portion of his military retirement benefits with the wife. Then, he said, either the wife or her attorney stated that the amount of military retirement benefits the wife would receive "was set by law, there was nothing to argue about, and [he] couldn't do anything about it." The husband testified that he replied, "Okay, if that's the law, I can't fight the law," and he agreed to give the wife whatever "was mandated by the military." The husband said that he left the courthouse on August 20, 1999, thinking that "the government was going to make [him] pay a certain percentage of [his] retirement to [the] wife." Later, however, he went to the legal office at Fort Rucker and learned that the wife was "mandatorily entitled to no percentage."
At a hearing on the wife's "Petition to Clarify," Mr. Motley, the husband's lawyer, stated to the court that he was not requesting that the agreement be set aside, but that it be enforced as written. He continued:
The wife testified that, during the settlement negotiations, she believed that she was entitled to a certain percentage of the husband's military retirement pay based on a formula using the number of years the parties were married, but she did not know what that percentage was. She stated that she relied on Mr. Motley, the husband's lawyer, who "told [her] that he had handled these cases before, that he knew what paperwork needed to be filled out, and that he would get it filled out." The wife turned to Ms. Jared, her lawyer, and asked, "What do you think?" According to the wife, Ms. Jared replied, "I don't know anything about it. If he knows what he's doing, let's let him take care of it, if he will."
Ms. Jared informed the court that the wife was not asking the court to set aside the agreement, but to clarify it. She testified that after the parties had outlined the terms of the proposed settlement agreement to Judge McAliley on August 20, 1999, she believed that the parties had agreed that the wife was entitled to a percentage of the husband's military retirement pay based on the number of years they were married; that no one knew what the percentage was; and that the husband or his lawyer would find out the correct percentage and draft the order for the judge. Ms. Jared acknowledged that "the fly in the ointment" was the use of the word "mandatorily" in paragraph 5, but, she said, when she reviewed the proposed order Ms. Clark sent her, she did not realize the significance of the word.
On December 22, 2002, Judge McAliley resigned from the bench; on December 23, 2002, he was appointed as the District Attorney for the Twelfth Judicial Court. On June 23, 2003, he purported to enter an amended judgment clarifying paragraph 5 of the divorce judgment to award the wife one-third of the husband's military retirement benefits. The husband then filed a petition for a writ of prohibition with this court, seeking to vacate the order purporting to amend the divorce judgment. This court issued the writ, and, on July 28, 2003, Circuit Judge Steven E. Blair vacated former Judge McAliley's order.
On September 28, 2004, Judge Blair conducted a hearing on the wife's petition to clarify, at which Ms. Jared and Ms. Clark were the only witnesses to testify. Their testimony was substantially the same as that given before Judge McAliley in earlier hearings. There was no testimony from Mr. Motley, who had died, from the wife, or from the husband. When the husband's lawyer moved to include in the record the husband's testimony from the earlier hearings before Judge McAliley, Judge Blair denied the motion, stating that he would not consider the husband's testimony from earlier hearings. He explained:
On September 30, 2004, Judge Blair ordered that paragraph 5 be "reformed to reflect the intent of the parties" to award the wife 32 percent of the husband's military retirement pay, and he entered an order amending the divorce judgment accordingly.
The husband appeals, contending that Judge Blair erroneously modified the judgment of divorce more than 30 days after its entry. The husband maintains that paragraph 5 of the divorce judgment is clear and unambiguous and reflects an intent to have the court award the wife that part of his military retirement benefits that was mandated by federal law, which, he later learned, was zero. The wife, on the other hand, contends that the paragraph 5 is ambiguous and that the trial court's order reforming the provision was necessary in order to effectuate the intent of the parties.
It is clear to this court that the parties and their lawyers were operating under the mistaken impression that, because the parties had been married for more than 10 years, the wife was automatically, or "mandatorily," entitled to a portion of the husband's military retirement benefits. Although a mutual mistake of fact or law
Because we review de novo a trial court's determination that a contract is ambiguous, Winkleblack v. Murphy, 811 So.2d 521 (Ala.2001), we must determine whether the trial court was correct as a matter of law in deciding that paragraph 5 was ambiguous.
Van Allen v. Van Allen, 812 So.2d 1276, 1277 (Ala.Civ.App.2001). See also Ex parte Littlepage, 796 So.2d 298, 301 (Ala. 2001); and Jardine v. Jardine, 918 So.2d 127, 131 (Ala.Civ.App.2005). Generally, Alabama courts "`will not look beyond the four corners of an instrument unless the instrument contains latent ambiguities. Martin v. First Nat'l Bank of Mobile, 412 So.2d 250, 253 (Ala.1982).'" Kershaw v. Kershaw, 848 So.2d 942, 955 (Ala.2002) (quoting Ex parte Employees Retirement Sys. Bd. Of Control, 767 So.2d 331, 335 (Ala.2000)).
There are generally two kinds of ambiguity that may arise in a contract: patent and latent. See 11 Richard A. Lord, Williston on Contracts § 33:40 at 816 (4th ed.2003). A patent ambiguity is one that is apparent upon the face of the instrument, arising by reason of inconsistency or uncertainty in the language employed. See McCollum v. Atkins, 912 So.2d 1146, 1148 (Ala.Civ.App.2005) (quoting Jacoway v. Brittain, 360 So.2d 306, 308 (Ala.1978)) (stating that "`[a] patent ambiguity is not a true ambiguity; it is merely confusion created on the face of the [instrument] by the use of defective, obscure or insensible language'").
City of Grosse Pointe Park v. Michigan Mun. Liab. & Prop. Pool, 473 Mich. 188, 217 n. 21, 702 N.W.2d 106, 123 n. 21 (2005). See also Smith v. Aikin, 75 Ala. 209, 210 (1883) (holding that a contract calling for one party to saw lumber for the other party "`at the price of two dollars per thousand feet'" contained a latent ambiguity because there were two modes of measurement in the milling trade—log measurement and line measurement—and it was uncertain by which mode the term "per thousand feet" was to be calculated).
There was neither a patent nor a latent ambiguity in the language of paragraph 5. The provision was free of patent ambiguity because the language employed was clear and easily comprehensible; no "confusion [was] created on the face of the [document] by the use of defective, obscure or insensible language." Jacoway v. Brittain, 360 So.2d at 308. The provision was free of latent ambiguity because, as the undisputed evidence demonstrated, there was no "uncertain meaning" as to any term in paragraph 5. On the contrary, the parties and their lawyers had the same understanding with respect to the division of the husband's military retirement pay; all believed that the USFSPA mandated that the wife receive a certain percentage, even though they were unaware of what that supposed percentage was.
We hold that the trial court erred by reforming paragraph 5 of the parties' divorce judgment on the basis of ambiguity—the only basis raised at trial or argued on appeal. Paragraph 5 is not ambiguous.
The judgment of the Coffee Circuit Court is reversed, and the cause is remanded with instructions to vacate the order clarifying and reforming paragraph 5 of the parties' divorce judgment.
REVERSED AND REMANDED WITH INSTRUCTIONS.
PITTMAN and BRYAN, JJ., concur.
MURDOCK, J., concurs in the result, without writing.
THOMPSON, J., dissents, without writing.
See also Restatement (Second) of Contracts § 155 (1981).
See also Restatement (Second) of Contracts § 152(1) (1981), and Blackwell v. Adams, 467 So.2d 680 (Ala.1985) (holding that a judgment may be set aside under Rule 60(b)(6), Ala. R. Civ. P., based on a mutual mistake of the parties).