Sharon Smith Gartrell v. Edward Conant Gartrell, Jr. (Appeal from Madison Circuit Court: DR-21-900713.80).

Rel: October 18, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________

CL-2024-0290
_________________________

Sharon Smith Gartrell

v.

Edward Conant Gartrell, Jr.

Appeal from Madison Circuit Court
(DR-21-900713.80)

MOORE, Presiding Judge.

Sharon Smith Gartrell ("the wife") appeals from a judgment

entered by the Madison Circuit Court ("the trial court") divorcing her

from Edward Conant Gartrell, Jr. ("the husband"), to the extent that the

judgment declined to award her alimony and failed to reserve jurisdiction
CL-2024-0290

to award her periodic alimony in the future. We affirm the judgment in

part, reverse the judgment in part, and remand the case with

instructions.

Procedural History

The parties have previously appeared before this court. See

Gartrell v. Gartrell, [Ms. CL-2023-0288, Jan. 12, 2024] ___ So. 3d ___

(Ala. Civ. App. 2024). In Gartrell, we outlined the procedural history of

this case as follows:

"The parties married in 1998 and separated in July or
August 2021. On August 24, 2021, the wife filed a complaint
for a divorce. On September 24, 2021, the husband answered
the complaint and filed a counterclaim for a divorce. At the
trial on January 3, 2023, the wife sought, among other things,
an award of periodic alimony and an equitable division of the
marital property, which, she claimed, included the property
held by the Gartrell Family Express Trust ('the trust'), a
testamentary trust established for the benefit of the husband
by his mother when she died in 2014. The parties presented
competing evidence as to whether the husband had regularly
used the corpus and income from the trust for the common
benefit of the parties during the marriage. The parties also
disputed whether the proceeds of the trust could be used by
the husband to pay periodic alimony.

"On March 9, 2023, the trial court entered a final
judgment that, among other things, declared the husband's
interest in the trust to be the separate property of the
husband, divided the marital property without including the
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trust property, and declined to award the wife periodic
alimony. ...

"On April 6, 2023, the wife filed a postjudgment motion
seeking to alter or amend the judgment. The trial court denied
that motion on April 11, 2023. The wife filed a notice of appeal
to this court on May 3, 2023."

___ So. 3d at ___. In Gartrell, we affirmed the divorce judgment to the

extent that it determined that the property held by the Gartrell Family

Express Trust ("the trust") and the income from the trust were not

subject to equitable division. We reversed the divorce judgment insofar

as it denied the wife's request for periodic alimony, and we remanded the

case with instructions for the trial court to reconsider the wife's periodic-

alimony claim in accordance with Ala. Code 1975, § 30-2-57, and to also

reconsider the property-division award.

On March 13, 2024, the trial court entered an amended judgment.

In the amended judgment, the trial court again denied the wife's claim

for periodic alimony, stating, in pertinent part:

"This court has thoroughly reviewed the evidence
presented at trial, has considered the credibility of the parties'
testimony, and has carefully considered each of the relevant
elements in [Ala. Code 1975,] § 30-2-57 and the factors to be
considered thereunder. Having done so, the court expressly
finds as follows:
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"(1) [The wife] has failed to prove that she lacks a
separate estate or her separate estate is insufficient to enable
her to acquire the ability to preserve, to the extent possible,
the economic status quo of the parties as it existed during the
marriage.

"(2) [The wife] has failed to prove the [husband] has the
ability to supply those means without undue economic
hardship.

"(3) [The wife] has failed to prove that the circumstances
of this case make an award of periodic alimony equitable."

Having denied the wife's claim for periodic alimony, the trial court

maintained the property division as set out in the divorce judgment.

On April 2, 2024, the wife filed a postjudgment motion. On April

24, 2024, the wife filed a notice of appeal to this court; the wife's appeal

was held in abeyance until July 1, 2024, when her postjudgment motion

was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.; Rule

4(a)(5), Ala. R. App. P.

Issues

The wife argues on appeal that the trial court erred in denying her

request for periodic alimony and, alternatively, in failing to reserve

jurisdiction to award her periodic alimony in the future.

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Standard of Review

"The award of alimony and the division of property are
matters within the sound discretion of the trial court, and the
trial court's ruling on those matters will not be reversed
except for palpable abuse of that discretion. Wiggins v.
Wiggins, 498 So. 2d 853 (Ala. Civ. App. 1986). A trial court's
judgment is presumed to be correct if it is supported by the
evidence. Nowell v. Nowell, 474 So. 2d 1128 (Ala. Civ. App.
1985); McCoy v. McCoy, 549 So. 2d 53, 57 (Ala. 1989);
McCrary v. Butler, 540 So. 2d 736 (Ala. 1989); Jones v. Jones,
470 So. 2d 1207 (Ala. l985); Clark v. Albertville Nursing
Home, Inc., 545 So. 2d 9, 12-13 (Ala. 1989); Nunnery v.
Nunnery, 558 So. 2d 944 (Ala. Civ. App. 1990). The trial
court's judgment is subject to revision if it is plainly or
palpably wrong. Seamon v. Seamon, 587 So. 2d 333 (Ala. Civ.
App. 1991)."

Ex parte Killough, 728 So. 2d 589, 589-90 (Ala. 1998).

Facts

The parties married in 1998 and separated in 2021; they have one

daughter, who was born in 1998 and for whom the wife primarily

provided care during the marriage. Before the parties separated, they

lived a middle-class lifestyle. They resided in a home valued at $390,000

at the time of the trial; they had cellular telephones, cable television,

Internet service, and streaming services; and they ate out regularly, took

vacations, and purchased "nice" clothing. In addition to their regular

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CL-2024-0290

household expenses, which included utilities, premiums for health,

automobile, and homeowners' insurance, groceries, dry cleaning, and

charitable contributions, the wife spent approximately $1,000 per month

for discretionary expenses, such as cosmetics, take-out dining, and hair

appointments.

During the first part of their marriage, the parties paid all their

marital expenses out of a joint bank account in which they both deposited

their wages. In 2012, the wife quit working and spent considerable time

caring for her and the husband's elderly parents. In 2014, the husband

ceased depositing his wages into the joint bank account. Thereafter, the

husband paid the routine marital expenses and gave the wife a $1,000

per month allowance to cover her expenses. In 2018, the wife began

receiving Social Security retirement benefits, netting $951 per month,

which she used to cover her expenses in lieu of receiving the $1,000 per

month allowance from the husband.

At the time of the final hearing, the husband was 61 years old. The

husband had retired at age 56, after years of working primarily as an

insurance-claims adjuster for Nationwide Insurance ("Nationwide"), a job

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CL-2024-0290

in which he earned as much as $103,000 per year. He was drawing

$2,091 monthly from a Nationwide pension, which was due to expire in

August 2023 when he reached 62 years of age; he was also receiving net

income of $2,400 monthly from a 401(k) savings plan. The husband

testified that he would also become eligible for approximately $1,700 per

month in Social Security retirement benefits. He stated that he had not

sought employment following his retirement from Nationwide; that he

has arthritis and high blood pressure; and that companies are not hiring

insurance adjusters of his age.

The husband is the trustee and beneficiary of the trust, which was

established in 2014 and had assets totaling approximately $1,600,000 at

the time of the final hearing. The terms of the trust require the net

income of the trust to be distributed "in such installments as may be

convenient to [the beneficiary]." Additionally, the trustee may distribute

"from the principal of his or her share such amount as from
time to time may be necessary to maintain his or her health
and reasonable comfort, to support him or her in his or her
accustomed manner of living, and to provide for his or her
health, medical, dental, hospital and nursing expenses, and
expenses of invalidism, taking into account other resources
available to him or her."

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The trust earned an average annual net income of $55,000. The husband

testified that he had not taken regular distributions from the trust and

that he had, instead, opted to grow the trust for the benefit of the parties'

daughter.

At the time of the final hearing, the wife was 67 years old. When the

parties married in January 1998, she was working for Intergraph

Corporation ("Intergraph"), but she left that employment after she gave

birth to the parties' daughter in September 1998. The wife subsequently

worked as a Spanish teacher while also volunteering for a local mental-

health board and a local symphony. The wife last earned wages in 2012,

at which time she was making $40 per hour teaching Spanish to local

hospital workers. According to the wife, she had last inquired about

becoming employed in 2016 or 2017, when, she said, she had applied for

temporary positions to substitute for employees who would be absent for

short periods. She testified that she had not attempted to find

employment since that time because she had had issues with her knees

and because she needed to be available to assist her father. The wife

testified that the husband had encouraged her to take early Social

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Security retirement benefits at age 62 and that he had indicated that the

parties could live off the income from the trust after he retired; the

husband disputed that testimony. After the parties separated, the wife

and the parties' daughter began residing with the wife's 102-year-old

father in his home in Birmingham. The wife underwent surgeries to

replace both of her knees -- the left knee in 2021 and the right knee in

2022. The wife also suffers from a heart condition, anxiety, depression,

dysautonomia, hyperthyroidism, high blood pressure, and high

cholesterol, a condition for which she regularly takes medication.

The marital assets consisted of the marital residence, various

financial accounts, and the parties' personal property. The parties

originally resided in a house owned by the wife. In 2000, the wife sold that

house and used the approximately $120,000 in proceeds from the sale to

make a $100,000 down payment on the marital residence and to improve

the condition of the marital residence. At the time of the trial, the

mortgage note on the marital residence had been fully paid. After the

parties separated in August 2021, the husband continued to reside in the

marital residence with a friend. The trial court ordered the parties to sell

9
CL-2024-0290

the marital residence and to divide the proceeds of the sale equally, while

requiring the husband to pay for the maintenance of the marital residence

until the sale.

At the time of the final hearing, the husband's 401(k) savings

account had a balance of $124,586.04. The wife's 401(k) account from her

employment at Intergraph had been rolled over into an individual

retirement account ("IRA") at Morgan Stanley, which held a balance of

$32,676.89. The husband also had an IRA account valued at

approximately $10,000. The parties jointly owned 22 shares of Kentucky

River Property Stock that were valued at $1,600 per share. The parties

also had a joint bank account and separate bank accounts. The trial court

ordered that the marital financial accounts and any personal property be

divided evenly between the parties.

The trial court ruled that the trust and the income from the trust

was the separate property of the husband. The trial court also ruled that

the wife owned a separate estate, consisting of a Synovus money-market

account with a balance of $9,000 and a partial remainder interest in her

father's Birmingham house. The wife testified that the house was worth

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$290,000; that her father had a life estate in the house; and that, upon her

father's death, she and her sister would own the house as tenants in

common.

The marital debts consisted only of credit-card bills. The trial court

ordered the husband to pay the credit-card bills in his name, which had a

total balance of $1,824.29, and ordered the wife to pay the credit-card bills

in her name, which had a total balance of $2,828.

The wife submitted an exhibit indicating that she would require

$4,205 per month to maintain the marital standard of living, which

included $1,000 per month for rent or mortgage. The wife explained that,

at the time of the final hearing, she was residing rent-free in her father's

house and that she was providing her father, who suffered from

deteriorating health conditions, full-time care. According to the wife, upon

her father's death, she could continue to reside in the house only if she

purchased her sister's remainder interest for $145,000; otherwise, she

said, she would have to buy or rent a comparable house, leaving her to

make payments estimated to be $1,000 per month. The husband

submitted an exhibit estimating that his monthly budget, which did not

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include any amounts for clothing or for rent or a mortgage, would be

$2,568.

The trial court divorced the parties on the ground of incompatibility

of temperament. The husband asserted that the wife had committed

adultery, but the wife denied any act of infidelity, and the husband did not

offer any concrete evidence to support his allegation. The husband also

testified that the wife was not financially responsible and that he had

wanted her to work more during the marriage. The wife testified that the

husband had never communicated his desire for her to work more until

late in their marriage and that their separation had resulted from a

progressive deterioration in their relationship due to the husband's

withdrawal from her emotionally and physically. The husband testified

that he had decided to divorce the wife once the parties' daughter

graduated from college but that he had not informed the wife of his

decision. According to the husband, the wife had often threatened him

with divorce. The wife testified that, if she had known that the husband

planned to divorce her, she would have waited to draw her Social Security

retirement benefits to ensure she had greater income to support herself.

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The wife testified that it would be "really hard" for her to work given

her circumstances and that she could not maintain the marital standard

of living using only her Social Security income. The wife requested that

the husband pay her $2,200 per month in periodic alimony to assist her

financially. The husband testified that he could afford to meet his monthly

living expenses and to pay the wife the requested amount of periodic

alimony only if he used proceeds from the trust. The husband testified

that he should not have to use trust proceeds to help support the wife

because she was not an intended beneficiary of the trust, which contained

a clause that the principal and income of the trust would not "be liable for

to any extent subject to debts, claims or obligations of any kind or nature

whatsoever ...."

Analysis

Section 30-2-57 provides, in pertinent part:

"(a) Upon granting a divorce or legal separation, the
court shall award either rehabilitative or periodic alimony as
provided in subsection (b), if the court expressly finds all of
the following:

"(1) A party lacks a separate estate or his or
her separate estate is insufficient to enable the
party to acquire the ability to preserve, to the
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CL-2024-0290

extent possible, the economic status quo of the
parties as it existed during the marriage.

"(2) The other party has the ability to supply
those means without undue economic hardship.

"(3) The circumstances of the case make it
equitable."

A trial court may deny a claim for alimony if a spouse fails to prove by a

preponderance of the evidence one or more of the factors set forth in § 30-

2-57(a). See generally Shewbart v. Shewbart, 64 So. 3d 1080, 1087-89

(Ala. Civ. App. 2010).

The trial court initially found, among other things, that the wife

had failed to prove that she lacked a separate estate or that her separate

estate was insufficient to enable her to maintain the marital standard of

living. For purposes of § 30-2-57(a)(1), the "separate estate" of a

dependent spouse includes

"(1) The party's own individual assets.

"(2) The marital property received by or awarded to the
party.

"(3) The liabilities of the party following the distribution
of marital property.

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"(4) The party's own wage-earning capacity, taking into
account the age, health, education, and work experience of the
party as well as the prevailing economic conditions.

"(5) Any benefits that will assist the party in obtaining
and maintaining gainful employment.

"....

"(7) Any other factor the court deems equitable under
the circumstances of the case."

Ala. Code 1975, § 30-2-57(d). In this case, the wife's individual assets

consist of a one-half remainder interest in her father's house, that

interest being valued at $145,000, and $9,000 in a money-market

account. The trial court awarded the wife one-half of the proceeds of the

sale of the marital residence, i.e., $195,000, $62,293.02 from the

husband's 401(k) savings plan, $21,338.44 in IRA funds, and $17,600 in

stock. The wife also receives $951 per month in Social Security benefits.

Because the wife is 67 years old, is retired, see McCarron v. McCarron,

168 So. 3d 68 (Ala. Civ. App. 2014) (holding that fact that party has

retired must be considered when assessing wage-earning capacity), and

has numerous health problems, the wife has no discernible wage-earning

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capacity. The wife further testified that she is the main caretaker of her

elderly father, further limiting her employment opportunities.

The wife submitted an exhibit estimating that she would need

$4,205 per month to live as she had during the marriage. That exhibit

included $1,000 per month for mortgage or rent payments. The wife

explained that she could eliminate any rent or mortgage obligation by

purchasing her sister's one-half remainder interest in the father's house

for $145,000, but, if that plan could not be accomplished, she would have

to buy or rent another house at an estimated cost of $1,000 per month.

The husband submitted a monthly budget of $2,568 per month that

included many of the same items included in the wife's budget, but he did

not include any rent or mortgage costs and he did not testify as to the

estimated costs for obtaining housing comparable to the marital

residence.

The wife posits that, assuming that she receives $195,000 from the

sale of the marital residence and that she purchases the sister's

remainder interest in the father's house for $145,000, thus eliminating

any rent or mortgage obligation, she would still need $3,205 per month

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to pay her living expenses. See Kean v. Kean, 189 So. 3d 61, 66 (Ala. Civ.

App. 2015) (noting that the starting point in calculating periodic alimony

is the financial costs of maintaining the marital standard of living). The

wife has $951 in monthly Social Security income to pay her monthly

living expenses, leaving her a deficit of $2,254 each month. At trial, the

wife requested $2,200 per month in periodic alimony.

The wife acknowledges that she could use the $9,000 in her

separate money-market account and the approximately $151,000 in

financial assets that she received in the property division to cover that

shortfall, but she argues that she should not have to deplete those assets

to meet her financial needs. Generally, a dependent spouse "should not

be compelled to consume the principal of her property-distribution award

in order to maintain the lifestyle to which she had become accustomed

during the marriage." Kean, 189 So. 3d at 67. However, that general

principle has not been applied to retirement accounts received in an

equitable property division. The beneficiary of a retirement account

customarily withdraws a portion of the account on a regular basis to pay

his or her living expenses. For example, in this case, the husband was

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already withdrawing a net amount of $2,400 each month from his 401(k)

account to pay the parties' living expenses. It would not be inequitable

for the wife to continue using the funds from the retirement accounts she

was awarded in the same manner. Thus, we affirm the judgment insofar

as it denied the wife's claim for periodic alimony.

We agree, however, that by using the funds from the retirement

accounts to pay her estimated monthly living expenses, the wife would

exhaust her retirement accounts within a relatively short period. She

would then have to rely on the funds in her money-market account and

the $50,000 remaining from the proceeds of the sale of the marital

residence to pay her living expenses, which, when coupled with her Social

Security income, would also be exhausted within a relatively short

period, contrary to Kean.

The wife has shown that she can only temporarily maintain the

marital standard of living using her retirement accounts and her Social

Security income. When a trial court denies periodic alimony, but the

evidence indicates that the circumstances regarding the financial needs

of a spouse will likely change, the trial court should reserve jurisdiction

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to award periodic alimony based on those changed circumstances. See

Rockett v. Rockett, 77 So. 3d 599, 604 (Ala. Civ. App. 2011). If the trial

court fails to reserve jurisdiction to award periodic alimony upon future

consideration, its power to modify its judgment denying periodic alimony

is "permanently lost." Kennedy v. Kennedy, 743 So. 2d 487, 490 (Ala.

Civ. App. 1999); see also § 30-2-57(c). Based on the probability that the

wife will not be able to remain self-supporting, we conclude that the trial

court should have reserved jurisdiction to award the wife periodic

alimony. See Ex parte Killough, supra.

Section 30-2-57(c), Ala. Code 1975, which was enacted in 2017, see

Ala. Acts 2017, Act No. 2017-164, § 2, now provides:

"In cases in which a party has proven a lack of means to
acquire the ability to preserve, to the extent possible, the
economic status quo of the parties as it existed during the
marriage, but there exists a present inability of the other
party to supply those means, a court, when the circumstances
of the case make it equitable, shall reserve jurisdiction to
award rehabilitative or periodic alimony. If there is neither
an award of alimony nor a reservation of jurisdiction at the
time of the divorce, the court shall permanently lose
jurisdiction to subsequently make an award of rehabilitative
or periodic alimony."

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Section 30-2-57(c) mandates that a trial court reserve jurisdiction to

award periodic alimony in the future when a claim for periodic alimony

has been denied solely because of the present inability of the respondent

spouse to pay and the circumstances of the case make it equitable.

The dissent argues that § 30-2-57(c) deprives a trial court of the

power to reserve jurisdiction to award periodic alimony in the future in

any other situation, such as when the petitioning spouse has no present

need for periodic alimony, but that need may arise due to changed

circumstances. However, as our supreme court explained in Morgan v.

Morgan, 211 Ala. 7, 8, 99 So. 185, 186 (1924), in this state, the power of

a trial court to retain jurisdiction to modify a judgment relating to

periodic alimony based on changed circumstances did not emanate from

statutory law. That power derived from the inherent jurisdiction of a

court of equity in divorce proceedings. See Jones v. Jones, 131 Ala. 443,

447, 31 So. 91, 92 (1901). Section 30-2-57(c) recognizes this equitable

power and directs how that power shall be exercised in the circumstances

set out therein. Section 30-2-57 does not go further to preclude a trial

court from exercising its power as a court of equity in divorce proceedings

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to address other circumstances that may require the retention of

jurisdiction to award periodic alimony in the future.

The dissent essentially contends that, by omitting other

circumstances in which trial courts have traditionally reserved

jurisdiction to award periodic alimony, § 30-2-57(c) impliedly prohibits a

trial court from continuing to exercise its equitable power in those

circumstances. However, statutes are to be construed strictly so as not

to alter the common law in any way except as expressly declared. See

Arnold v. State, 353 So. 2d 524, 526 (Ala. 1977). Section 30-2-57(c) does

not expressly declare that a trial court may reserve jurisdiction to award

periodic alimony only in the circumstances set forth therein, and the

statute does not expressly declare that a trial court cannot reserve

jurisdiction to award periodic alimony in other circumstances. We do not

glean from the language in § 30-2-57(c) any clear intention of the

legislature to make such a drastic alteration of the common law enforced

by Alabama courts for over 100 years. See Isbrandtsen Co. v. Johnson,

343 U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952) ("Statutes

which invade the common law ... are to be read with a presumption

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favoring the retention of long-established and familiar principles, except

when a statutory purpose to the contrary is evident.").

Lastly, the husband argues that the wife did not properly preserve

the reservation issue for appellate review, citing Holland v. Holland, 252

So 3d 1081 (Ala. 2017). However, in Holland, Mrs. Holland did not make

any argument to the Shelby Circuit Court, neither at trial nor in a

postjudgment motion, that it should have reserved jurisdiction to award

her periodic alimony, nor did she make any legal or factual argument to

justify her position on appeal. See 252 So. 3d at 1088. In this case, in

her postjudgment motion, the wife expressly argued that the trial court

abused its discretion in failing to reserve jurisdiction to award her

periodic alimony. Thus, the wife did not waive her argument by failing

to first raise it in the trial court or by failing to make a legal argument

with citation to authorities on appeal as required by Rule 28(a)(10), Ala.

R. App. P., as was the case in Holland.

Generally speaking, a trial court has the discretion to disregard a

new legal argument raised in a postjudgment motion, see Green Tree

Acceptance, Inc. v. Blalock, 525 So. 2d 1366 (Ala. 1988), but, when

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adjudicating a claim for alimony, a trial court is guided primarily by

principles of equity. In recognizing that a court of equity has the power

to reserve jurisdiction over alimony awards to account for potential

changes in the financial circumstances of the parties, our supreme court

has held that the trial courts should exercise that power liberally to "mold

its decrees that justice is meted out without oppression." See Jones v.

Jones, 131 Ala. at 447, 31 So. at 92. Thus, "[t]he trial court should reserve

the issue of alimony if the facts indicate that future circumstances may

entitle either party to a later award of alimony." Kirkland v. Kirkland,

860 So. 2d 1283, 1290 (Ala. Civ. App. 2003). In exercising its discretion,

the trial court, acting as a court of equity, should not have disregarded

the wife's postjudgment argument asserting that it should have reserved

jurisdiction to award her periodic alimony in the future.

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Conclusion

We affirm that part of the amended divorce judgment denying the

wife periodic alimony. We reverse that part of the amended divorce

judgment declining to reserve jurisdiction to award the wife periodic

alimony in the future, and we remand the case with instructions for the

trial court to amend the judgment in accordance with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

WITH INSTRUCTIONS.

Hanson, J., concurs.

Fridy, J., concurs in the result, without writing.

Edwards, J., dissents, without writing.

Lewis, J., dissents, with writing.

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LEWIS, Judge, dissenting.

I respectfully dissent from the main opinion's reversal of the

judgment entered by the Madison Circuit Court ("the trial court"). The

main opinion reverses the trial court's judgment on the basis that the

trial court exceeded its discretion by declining to reserve the issue of

periodic alimony "[b]ased on the probability that the wife will not be able

to remain self-supporting." ___ So. 3d at ___ (citing Ex parte Killough,

728 So. 2d 589, 589-90 (Ala. 1998)).

Section 30-2-57(c), Ala. Code 1975, provides:

"In cases in which a party has proven a lack of means to
acquire the ability to preserve, to the extent possible, the
economic status quo of the parties as it existed during the
marriage, but there exists a present inability of the other
party to supply those means, a court, when the circumstances
of the case make it equitable, shall reserve jurisdiction to
award rehabilitative or periodic alimony. If there is neither
an award of alimony nor a reservation of jurisdiction at the
time of the divorce, the court shall permanently lose
jurisdiction to subsequently make an award of rehabilitative
or periodic alimony."

Notably, § 30-2-57(c) does not state that a trial court may reserve

jurisdiction to award periodic alimony when the evidence indicates that

the obligee spouse will not remain self-supporting, even though

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reservation of jurisdiction to award periodic alimony under such a

condition was allowed under the common law. The main opinion

determines that, in enacting § 30-2-57(c), there was no legislative intent

to abrogate the preexisting common law concerning the reservation of

periodic alimony. I disagree.

"The common law is the law of Alabama unless it is repealed by

statute." Borden v. Malone, 327 So. 3d 1105, 1120 (Ala. 2020) (citing § 1-

3-1, Ala. Code 1975). In determining whether a statute abrogated the

common law, our supreme court in State v. Grant, 378 So. 3d 576, 581

(Ala. 2022), cited Beale v. Posey, 72 Ala. 323, 330 (1882), which stated:

"All statutes are construed in reference to the principles of the common

law; and it is not to be presumed that there is an intention to modify, or

to abrogate it, further than may be expressed, or than the case may

absolutely require." Our supreme court in Grant explained: " 'A statute

which is an innovation on the common law will not be extended further

than is required by the letter of the statute.' " 378 So. 3d at 581 (quoting

Pappas v. City of Eufaula, 282 Ala. 242, 244, 210 So. 2d 802, 804 (1968)).

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CL-2024-0290

The court noted, however, that the legislature is not required to expressly

state an intention to abrogate the common law in order to do so. Id.

In Douglas v. Griggers, [Ms. SC-2023-0259, Mar. 29, 2024] ___ So.

3d ___, ___ (Ala. 2024), our supreme court, in interpreting § 6-6-591, Ala.

Code 1975, reasoned:

"Under the plain meaning of § 6-6-591, there are only
two alternative methods for commencing a quo warranto
action: (1) at the direction of a circuit-court judge or (2)
without the direction of a circuit-court judge on the
information of any person giving security for the costs of the
action. No other permissible methods for commencing a quo
warranto action are provided by the statute.

" 'The maxim "expressio unius est exclusio
alterius," though not a rule of law, is an aid to
construction. It has application when, in the
natural association of ideas, that which is
expressed is so set over by way of contrast to that
which is omitted that the contrast enforces the
affirmative inference that that which is omitted
must be intended to have opposite and contrary
treatment. ... [U]nder it an act which, although
neither expressly forbidden nor authorized, is
contrary to the plain implication of a statute, is
unlawful.'

"Weill v. State ex rel. Gaillard, 250 Ala. 328, 334, 34 So. 2d
132, 137 (1948).

"In this case, it is undisputed that a circuit-court judge
did not direct Griggers to commence this action. It is also
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undisputed that Griggers did not give security for the costs of
the action. Thus, neither of the two permissible alternative
methods set forth in § 6-6-591 for commencing a quo warranto
action were satisfied in this case."

Similarly, in the present case, § 30-2-57(c) provides for the

reservation of jurisdiction to award periodic alimony when

"a party has proven a lack of means to acquire the ability to
preserve, to the extent possible, the economic status quo of the
parties as it existed during the marriage, but there exists a
present inability of the other party to supply those means, a
court, when the circumstances of the case make it equitable
…."

"No other [circumstances under which a trial court may reserve

jurisdiction to award periodic alimony] are provided by the statute."

Douglas, ___ So. 3d at ___. Under the maxim expressio unius est exclusio

alterius, the omission of certain reasons for reserving jurisdiction to

award periodic alimony while including only one reason for reserving

jurisdiction to award periodic alimony implies that the reasons that were

valid reasons for the reservation of jurisdiction to award periodic alimony

under the common law but were omitted in § 30-2-57(c) are no longer

valid reasons for the reservation of that jurisdiction. Id. Therefore, I

conclude that a showing of evidence indicating that the obligee spouse

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CL-2024-0290

will not remain self-supporting is no longer sufficient to support a

reservation of jurisdiction to award periodic alimony.

Based on the foregoing, I respectfully dissent from the main

opinion's reversal of the trial court's judgment for failure to reserve

jurisdiction to award periodic alimony.

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