Courts in Alabama can change alimony after the decree if there’s a material change in circumstances, and a court can extend an award of rehabilitative or temporary alimony beyond its original term. What happens, though, if the recipient doesn’t ask for the extension until after the original term has ended? The Alabama Court of Civil Appeals says no problem, as long as alimony is reserved in the original decree.
The case is Stanford v. Stanford, Case No. 2070605 (Ala. Civ. App. March 20, 2009). As is my custom here, I state only the facts relevant for the issue at hand. Husband and wife divorced in 2003, and their decree ordered the husband to pay the wife rehabilitative alimony of $750 per month. The decree stated “Thereafter, the Court reserves the right to award periodic alimony.”
The rehabilitative alimony ended in April, 2006. In June, 2006, the wife petitioned to modify the decree to award her alimony to allow her to finish her college education. The trial court ordered the husband to pay $300 per month for an additional term of 27 months. The trial court acknowledged that enlarging temporary alimony is an “extreme remedy” but stated that the extension of alimony would allow the wife to better herself and benefit the parties’ child in the long run.
The husband appealed, citing Banks v. Banks, 336 So. 2d 1365 (Ala. Civ. App. 1976). In Banks, the appeals court had cited what it said was a general rule in other jurisdictions that “a termination date [for alimony] does not remove the power of modification if done prior to the date of termination.” Banks at 1376 (emphasis added).
The appeals court rejected the husband’s argument on the grounds that the original final judgment had reserved the issue of periodic alimony. “Because that judgment contained a reservation of the issue, we conclude that the trial court could properly entertain the former wife’s modification request.” Stanford at 7.
Judge Moore offered a lengthy dissent. In it he acknowledged that the trial court could have used the reservation of alimony to award the wife permanent alimony if it decided that a material change in circumstances merited it. Here, however, Judge Moore said, the trial court did not do that. Instead, it specifically “enlarge[d] the temporary periodic alimony” based on a petition filed after that temporary alimony had ended. Judge Moore argued that the majority’s logic had to depend on a finding that the reservation of periodic alimony “naturally includes a reservation of jurisdiction to award rehabilitative alimony” because the rehabilitative alimony is a subset of periodic alimony. “However, such a reading would render the time limitation on an award of rehabilitative alimony totally meaningless.” Stanford at 22-23.
In this case, the trial court did not award the former wife alimony designed to maintain her former standard of living. In fact, no evidence was adduced at trial regarding the standard of living the wife enjoyed during the parties’ marriage. Instead, the trial court impermissibly revived the rehabilitative-alimony award in this case, reduced it to $ 300 per month, and conditionally extended it to May 2010. Based on the foregoing reasoning, I believe that the trial court acted outside its jurisdiction in reviving the rehabilitative-alimony award and that the [modification] judgment is therefore void. Stanford at 24.
As we often do here, let’s take a look at this ruling “on the ground” where divorcing spouses, lawyers and judges actually live and work. In the past, I have felt reasonably comfortable suggesting that my clients pay rehabilitative alimony as a way of getting a spouse back on his or her feet financially with renewing a teaching certificate, or obtaining a graduate degree. And in the world where I work, where spouses are ending their marriage but are able to cooperate with each other, both spouses usually want the other spouse to do well, so it’s often an easy sell. I expect to be able to continue with this practice, because my cooperative clients are not required to reserve alimony.
But in the world of adversarial divorce where most family lawyers practice, I wonder whether the appeals court is sounding the death knell for rehabilitative alimony with Stanford. Henceforth, a judge will know that reservation of rehabilitative alimony must be accompanied by a reservation of periodic alimony. Now, after Stanford, the judge will know that this reservation can be invoked at any time before or after the original term of the rehabilitative alimony, an ever-present, ever-threatening “gotcha” that leaves divorced spousese forever linked financially, with one wondering when the other may drop the other shoe with a request for permanent alimony. It’s not pretty. Stanford would make me reluctant ever to order rehabilitative alimony if I were a judge.