Susan Nixon Bailey v. David Keith Nixon

Rel: January 9, 2026

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, 2025-2026
_________________________

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_________________________

Susan Nixon Bailey

v.

David Keith Nixon

Appeal from Russell Circuit Court
(DR-12-900036.03)

FRIDY, Judge.

Susan Nixon Bailey ("the former wife") appeals from a judgment of

the Russell Circuit Court ("the trial court") finding David Keith Nixon

("the former husband") in contempt, awarding her a monthly payment of

$252.20 from the amount the former husband receives as a retirement
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benefit based on his work as a firefighter for the City of Columbus,

Georgia ("the city"), and awarding her an arrearage in the amount of

$6,052.80. For the reasons set forth herein, we reverse the judgment and

remand the case to the trial court with instructions.

Background

The parties married on April 9, 1992, and divorced in March 2013.

When they divorced, the parties reached a mediated agreement that the

trial court incorporated into the divorce judgment. Under the divorce

judgment, the trial court awarded the former wife "a portion of the

[h]usband's retirement with the City of Columbus ... calculated as 50% of

the retirement proceeds accumulated during the course of the marriage

and terminating as of the date of the issuance of the final decree of

divorce."

On July 27, 2023, the former wife filed a complaint seeking to hold

the former husband in contempt, alleging that the husband had retired

in November 2022 but had failed to pay her the 50% portion of his

retirement benefits to which she was entitled under the divorce

judgment. She sought payment of her share of those benefits retroactive

to November 2022, an award of attorney's fees, and other relief. The

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former husband filed an answer denying the allegations of the former

wife's complaint. He later amended his answer to assert that his

retirement plan was a defined-benefit pension that was not vested at the

time of the entry of the divorce judgment and that it was therefore not

subject to division.

The trial court held a trial on the former wife's contempt complaint

on December 2, 2024. The former husband's counsel conceded that the

former husband owed the former wife a portion of his retirement pension,

and the dispute concerned only the amount that the former husband was

to pay the former wife each month. The former wife's counsel maintained

that, upon the former husband's retirement, the former wife "was to

receive the full benefit of [the former husband's] retirement, minus the

number of months that he earned after the divorce."

The trial court explained that the language in the divorce judgment

-- "accumulated during the course of the marriage and terminating as of

the date of the issuance of the final decree of divorce" -- could be read in

two ways: either (1) that the former wife was entitled to 50% of the

portion of the retirement benefits accumulated during the marriage,

payable when the former husband retired, or (2) that the former wife's

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interest was limited to the value of those benefits as of the date of the

entry of the divorce judgment, which would result in only a few hundred

dollars per month. The trial court noted that the parties likely had not

intended for the former wife to receive only a few hundred dollars each

month after she relinquished claims to two other retirement accounts.

The former husband testified that he was forty-five years old at the

time of the divorce and that he retired at age fifty-five in November 2022,

after more than thirty-two years of service with the city. He confirmed

that he currently received $2,746 per month in retirement benefits. He

said that he did not recall what his salary was in 2013, but he testified

that he earned approximately $50,000 in 2022, and, he said, his 2022 W-

2 form reflected $62,880 in income as a result of his having worked

overtime. The former husband testified that, under the city's pension

plan, employees cannot retire until age fifty and that early retirement

before age fifty-five results in a 6% reduction per year in the retirement

benefit, which, he said, would yield only 30% of the unadjusted amount

if retirement occurred at age fifty. He testified that the 6% adjustment

applied under both the plan that was in effect when he began working for

the city and the plan that became effective on July 1, 2012.

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The former husband testified that he had understood the divorce

judgment to require him to pay half of the retirement benefits

accumulated during the marriage as a lump sum -- half of $1,600 -- rather

than monthly payments. He testified that, using the formula the city

used to calculate pensions, he had calculated that his unadjusted

retirement benefit at the time of the entry of the divorce judgment would

have been $1,916.82 per month. He said that, had he retired at age fifty,

applying the 30% early-retirement provision, he would have received

$575.04 per month, i.e., 30% of $1,916.82, and that the former wife's 50%

share would be $261.66 per month -- adjusted to account for the

approximately two years that they were not married when he began his

employment with the city -- based on the twenty-one years of service that

he had during the marriage. He testified that he was willing to pay the

former wife $261.66 per month.

The former wife testified that, during mediation, she had waived

alimony in exchange for receiving lifetime monthly pension payments to

begin upon the former husband's retirement. She said that, because the

former husband was not retired when they divorced, the amount of those

monthly pension payments could not be determined at that time. When

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she learned of the former husband's retirement, she said, she contacted

the city and learned through discovery that he was receiving $2,746 per

month in retirement benefits based on roughly thirty years of service.

She said that she prepared an exhibit showing her calculation of what

she believed to be a fair division of the monthly benefits, seeking 40%

rather than 50% to credit him for his 109 months of postdivorce service.

She said that she was requesting $1,098 per month and $26,352 in

arrearages for the twenty-four months that had passed since his

retirement, along with attorney's fees.

The former wife explained that, based on her understanding of the

pension plan as described on the city's Web site, the plan calculates

retirement benefits by averaging the employee's three to five highest

annual salary amounts -- although she was unsure which number of

years the plan uses -- and then provides 60% of that average as the

retirement benefit. She testified that the former husband had told her

during the marriage that he would receive 60% of his salary under the

terms of the plan that was in effect when he began working.

Richard Lee Chancey, the former wife's former attorney, testified

that he represented her during the 2013 mediation. He stated that he

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believed that the parties had intended to divide the former husband's

retirement benefits accumulated during the marriage. He testified that,

as he recalled, the parties had intended for the former wife to receive a

fractional share of the monthly retirement benefits that the former

husband would have received had he retired as of the date of the entry of

the divorce judgment and that the trial court's calculation should be

based on that amount and not on the fractional share of the monthly

retirement benefits that the former husband was actually receiving. He

explained that the exact amount was undetermined in 2013 because the

former husband had not yet retired, but, he said, the parties had

anticipated that the calculation would occur upon the former husband's

actual retirement. Chancey corroborated the former wife's testimony

indicating that, in exchange for receiving lifetime monthly pension

payments upon the former husband's retirement, she had not sought

monthly spousal support. He acknowledged that the agreement

contained no safeguard in case the former husband died before he vested

in the pension plan. He confirmed that the former husband's pension

benefits increased with his years of service.

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Cynthia Holliman, a senior pension-plan administrator with the

city, testified that the former husband participated in the city's public-

safety pension plan, which, she said, had required five years of service

for vesting before July 1, 2012, and ten years thereafter. She testified

that the former husband was vested at the time of the entry of the divorce

judgment because he had worked the required 120 months, but, she

explained, he was not eligible to receive benefits at that time because he

was only forty-five years old. She testified that the former husband had

accumulated an unadjusted retirement amount of $1,681 per month

between April 9, 1992, and March 13, 2013, which, she stated,

represented the amount that he would have received, after reductions, if

he had retired at the earliest eligible age of fifty. She clarified, however,

that he would not have received that amount had he retired immediately

upon the entry of the divorce judgment because he was not yet eligible

for retirement. Holliman further testified that the former husband

continued working for at least ten years after the entry of the divorce

judgment, which, she confirmed, increased his final benefits.

The trial court noted that the term "retirement [benefits]

accumulated" as set forth in the divorce judgment did not specify the

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amount of the monthly pension that the former husband would have

actually received. Holliman confirmed that the $1,681 figure represented

only the unadjusted accumulated amount as of the entry of the divorce

judgment and that to receive full, unreduced benefits the former husband

was required to work to age fifty-five, with at least twenty-five years of

service.

The former wife submitted the former husband's pension plan into

evidence. The plan's early-retirement provision states, in pertinent part:

"If payment of an Early Retirement Pension commences prior
to the date the Member both attains age fifty-five (55) and
would have attained twenty-five (25) years of Vesting Service,
the amount of the Pension shall be reduced by 0.5 of 1% (.005)
for each full calendar month that commencement of the Early
Retirement Pension precedes the later of the date the Member
would have attained age fifty-five (55) and the date he would
have attained twenty-five (25) years of Vesting Service had he
continued employment with the Government."

Under this provision, for every year the former husband retired before

the age of fifty-five, he would have experienced a reduction of 6% in his

retirement benefits. As noted earlier, he could not have retired before he

turned fifty years old, and, under this provision, had he retired at fifty,

he would have experienced a 30% reduction in his retirement benefits.

However, as noted above, he did not retire before he reached the age of

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fifty-five, and, as a result, he did not experience an early-retirement

reduction to his retirement benefits.

The trial court directed the parties to submit caselaw or other

supporting materials within seven days of the hearing to inform the trial

court of their respective positions regarding the appropriate calculation

to be used to determine the former wife's share of the former husband's

pension. On December 9, 2024, both parties submitted post-hearing

briefs. The former husband argued that the former wife was entitled to

50% of the retirement benefits accrued as of the entry of the divorce

judgment, reduced to 30% of that amount by the early-retirement

reduction, resulting in a payment to the former wife of $252.20 per month

(50% of 30% of $1,681.30). The former wife argued that the judgment

entitled her to 50% of the former husband's retirement benefits

accumulated during the marriage, payable upon his retirement, and that

the trial court had authority to clarify but not to modify the divorce

judgment. She sought $1,098 per month, $26,352 in arrearages,

attorney's fees, and designation as a survivor beneficiary. Alternatively,

she maintained that, even under the former husband's evidence, her

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share of his pension should be at least 50% of $1,681, or $840.50 per

month.

On December 22, 2024, the trial court found the former husband in

contempt for failing to pay the former wife any portion of his retirement

benefits, as required by the divorce judgment. The trial court found that,

according to Holliman's testimony, the former husband's unadjusted

monthly retirement benefits as of March 13, 2013, would have been

$1,681.30 and that his early-retirement amount at that time would have

been 30% of that amount, or $504.39 per month. The trial court

determined that, because the former wife was entitled to 50% of that

amount, she should receive $252.20 per month. The trial court further

found that the former husband had not paid the former wife any portion

of his retirement benefits since his November 2022 retirement, held him

in contempt, calculated an arrearage totaling $6,052.80, and ordered him

to pay that amount within forty-five days, along with the former wife's

attorney's fees and costs.

On January 21, 2025, the former wife moved to alter, amend, or

vacate the judgment or, alternatively, for a new trial, asserting that the

trial court had improperly modified the property division in the divorce

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judgment applying what she called a "theoretical" early-retirement

penalty that reduced her share to 50% of only 30% of the former

husband's accumulated benefits. The former husband opposed the motion

on February 25, 2025, arguing that the trial court had properly

interpreted the divorce judgment and had correctly calculated the

marital-period benefits.

On March 10, 2025, the trial court denied the former wife's

postjudgment motion, and she filed a timely notice of appeal.

Standard of Review

" '[W]hen a trial court hears ore tenus testimony, its
findings on disputed facts are presumed correct and its
judgment based on those findings will not be reversed unless
the judgment is palpably erroneous or manifestly unjust.'
Philpot v. State, 843 So. 2d 122, 125 (Ala. 2002). ' "The
presumption of correctness, however, is rebuttable and may
be overcome where there is insufficient evidence presented to
the trial court to sustain its judgment." ' Waltman v. Rowell,
913 So. 2d 1083, 1086 (Ala. 2005) (quoting Dennis v. Dobbs,
474 So. 2d 77, 79 (Ala. 1985)). 'Additionally, the ore tenus rule
does not extend to cloak with a presumption of correctness a
trial judge's conclusions of law or the incorrect application of
law to the facts.' Id."

Fadalla v. Fadalla, 929 So. 2d 429, 433 (Ala. 2005). " 'Questions of law are

reviewed de novo' "; moreover, " '[t]his court reviews de novo a trial court's

determination with respect to whether an agreement incorporated into a

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divorce judgment is ambiguous.' " Gore v. White, 96 So. 3d 834, 841 (Ala.

Civ. App. 2012) (citations omitted).

Analysis

At the outset, we address two of the former husband's arguments.

First, the former husband argues that the trial court was wrong to hold

him in contempt for failing to pay the former wife a portion of his

retirement benefits for the two years that elapsed between his retirement

and the entry of the final judgment in this action. He asserts that,

because the former wife had never obtained a Qualified Domestic

Relations Order, he was unable to determine the amount that he owed

her and did not have an opportunity to comply with his obligation to pay

her that amount, and he concludes that, as a result, the trial court lacked

subject-matter jurisdiction. However, the former husband did not file a

cross-appeal challenging the judgment and, therefore, has not properly

placed before this court the question whether the trial court properly held

him in contempt. See Beaty v. Head Springs Cemetery Ass'n, 413 So. 2d

1126, 1128 (Ala. 1982) ("In the absence of taking an appeal, an appellee

may not cross-assign error."). Further, we fail to discern how the former

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husband's argument raises an issue of the trial court's subject-matter

jurisdiction.

The former husband next argues that this court should affirm the

trial court's judgment because the three exhibits that the trial court

admitted at trial are not contained in the record on appeal. We note,

however, that it is not uncommon for trial exhibits to not accompany a

record on appeal that is transmitted to this court, and, when that

happens, our court normally reaches out to the trial-court clerk's office

and asks that office to transmit the exhibits. We did so in this case. The

trial-court clerk's office transmitted two of the exhibits, and, regarding

the exhibit that that office was unable to locate -- a tax document that

appears to have had no bearing on the trial court's judgment and, as will

become apparent in this opinion, has no bearing on the resolution of this

appeal -- this court ordered the parties to supplement the record on

appeal with a copy of that exhibit. This court has now received a

supplemental record on appeal containing that exhibit. Thus, we find no

basis in this argument for affirming the trial court's judgment.1

1As part of this argument, the former husband contends that the

former wife failed to put into evidence the divorce judgment containing
the retirement-benefits paragraph at issue in this case. However, the
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Turning to the former wife's contentions, the former wife argues

that the trial court improperly modified the divorce judgment by

imposing a "theoretical early-retirement penalty" that reduced her share

to 50% of only 30% of the former husband's accumulated retirement

benefits at the time of the entry of the divorce judgment. She asserts that

the divorce judgment unambiguously awarded her one-half of the former

husband's total retirement benefits accumulated during the parties'

marriage, without any reduction, and that the trial court lacked

authority to alter that division. The former wife further argues that,

because the former husband retired at age fifty-five, no early-retirement

penalty applied and that what she calls the trial court's 70% reduction of

the amount the former husband would have received as a pension on the

date of the entry of the divorce judgment lacked evidentiary support. She

former wife's complaint in this action, at paragraph three, recited that
paragraph from the divorce judgment, and the former husband admitted
the allegations of paragraph three of the former wife's complaint in both
his answer and his amended answer. Moreover, the former wife's
attorney read the pertinent paragraph from the divorce judgment to the
trial judge at the beginning of the trial, and the former husband did not
argue that she had read it incorrectly. Finally, the trial court quoted in
its final judgment the relevant portion of the divorce-judgment
paragraph at issue, and neither party has argued that the trial court
misquoted that paragraph.
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also contends that the trial court miscalculated the unadjusted

retirement amount, resulting in an undervaluation of her monthly share

and arrearage.

"Judgments are to be construed like other written instruments."

Moore v. Graham, 590 So. 2d 293, 295 (Ala. Civ. App. 1991). The same

rules that govern the construction and interpretation of contracts apply

to the interpretation of judgments. Id. A settlement agreement that is

incorporated into a divorce judgment is contractual in nature and is

interpreted in the same manner as any other written instrument. Reeves

v. Reeves, 363 So. 3d 996, 1004 (Ala. Civ. App. 2021). The court must give

the words of the agreement their ordinary meaning and derive the

parties' intent from the plain language of the document. Id. When an

agreement's terms are clear and unambiguous, the court must enforce

the agreement as written. Id. An ambiguity exists when the language is

susceptible to more than one reasonable interpretation; however, " '[j]ust

because the parties allege different constructions of an agreement, it does

not necessarily mean that the agreement is ambiguous.' " Id. (citation

omitted).

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The divorce judgment in this case unambiguously provides that the

former wife "shall be awarded a portion of the [former] husband's

retirement with the City of Columbus ... calculated as 50% of the

retirement proceeds accumulated during the course of the marriage and

terminating as of the date of the issuance of the final decree of divorce,

with said proceeds to be paid directly to the [former] wife upon the

retirement of the [former] husband." (Emphasis added.) The divorce

judgment expressly entitles the former wife to one-half of the retirement

benefits that the former husband accumulated during the marriage

through the date of the entry of the divorce judgment and directs that

payment of that portion of the retirement benefits is to begin when the

former husband retires. Although the parties offer conflicting

interpretations of this provision, their disagreement alone does not create

an ambiguity. See Reeves, 363 So. 3d at 1004. As our supreme court has

held, courts "will not insert ambiguities into a contract by 'strained and

twisted meaning where no such ambiguities exist.' " ERA Commander

Realty, Inc. v. Harrigan, 514 So. 2d 1329, 1334 (Ala. 1987) (quoting South

Cent. Bell Tel. Co., 466 So. 2d 928, 931 (Ala. 1985)).

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The trial court erred in its interpretation of the phrase

"accumulated ... and terminating as of the date of the issuance of the final

decree of divorce." In effect, the trial court interpreted that language to

mean that the former husband's pension should be valued as if he had

retired on the date of the entry of the divorce judgment. It was wrong to

do so. Rather, the plain meaning of that phrase is that the period of the

accumulation of the former husband's benefits that would be used to

calculate the former wife's portion of the former husband's benefits would

begin when the parties married and end on the date of the entry of the

divorce judgment. 2 Put another way, the phrase sets an endpoint for the

accumulation of the former husband's retirement benefits to which the

former wife would be entitled upon his retirement; it does not call for a

2It makes sense that the parties' agreement and the divorce
judgment would set the date for the end of the period of accumulation for
measuring the portion of the former husband's retirement benefits to
which the former wife would be entitled given that a trial court generally
has discretion in determining whether that period should end when the
divorce complaint was filed or when the final judgment of divorce was
entered. See Crowder v. Crowder, 166 So. 3d 135, 138 n.1 (Ala. Civ. App.
2014) ("[W]e note that this court has held that a trial court does not err
in basing its valuation of a retirement account that may be divisible
under Ala. Code 1975, § 30-2-51, upon its value at the time of the entry
of the divorce judgment rather than at the time of the parties'
separation.").
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calculation of the former wife's portion of the benefits as if the former

husband had retired on that date. Indeed, taking the trial court's

interpretation to its logical conclusion, because the former husband was

not entitled to receive retirement benefits at the time of the entry of the

divorce judgment (he was only forty-five years old and receipt of those

benefits could not have started until later), the former wife would not

have been entitled to any of the former husband's retirement benefits.

Such a result does not reflect the parties' intent, because it would render

the award to the former wife meaningless. Because courts must construe

contracts to avoid unreasonable results, the trial court's interpretation

cannot stand. See International Harvester Co. v. Bostick's Int'l, Inc., 365

So. 2d 84, 87 (Ala. Civ. App. 1978).

The trial court compounded its error in interpreting the divorce

judgment by improperly imposing an early-retirement penalty on the

portion of the retirement benefits the former wife was due to receive. The

trial court's reasoning appears to have been that, because the former

husband had vested in the pension plan by the time the divorce judgment

was entered, if he had retired at that time, he would have begun receiving

his pension when he turned fifty years old. Had he begun receiving his

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retirement benefits at that time, the amount he would have received

would have been reduced by an early-retirement penalty that was

imposed by the retirement plan on benefits drawn before age fifty-five.

However, the former husband did not retire before the age of fifty-

five, and no early-retirement penalty has ever been applied to his

retirement benefits. The divorce judgment did not authorize the trial

court to impose a theoretical early-retirement penalty on the former

wife's share when the former husband did not, in fact, retire early. The

plain language of the divorce judgment entitles the former wife to one-

half of the retirement benefits accumulated during the marriage through

the date of the entry of the divorce judgment and affords the trial court

no discretion to impose theoretical adjustments or penalties on that

amount. Therefore, the trial court erred when it treated the former

husband as if he had retired at age fifty, five years before he actually

retired, and imposed on the former wife's portion of his retirement

benefits an early-retirement penalty.3 On remand, the trial court should

3Furthermore, the early-retirement penalty the trial court imposed

was far higher than the pension plan called for. The trial court incorrectly
determined that an employee retiring at age fifty would receive only 30%
of his or her retirement benefits. However, as noted above, the pension
plan imposes a penalty of half of 1% per month, or 6% per year, for early
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enter a new judgment that awards the former wife half of the portion of

the former husband's retirement benefits earned during the marriage,

with the portion earned during the marriage being calculated as

commencing when the marriage began and ending at the time of the

entry of the divorce judgment.

The former wife also contends that the trial court's determination

of the arrearage was incorrect because it incorrectly determined the

amount of the former husband's monthly retirement benefits to which

she was entitled. Because we agree that the trial court erred in its

calculation of the portion of the former husband's retirement benefits to

which she was entitled, we agree with the former wife that the trial court

erred in its calculation of the arrearage. On remand, the trial court

should award the former wife a new arrearage amount based on its

amended calculation of the amount of the former husband's retirement

benefits to which the former wife is entitled.

retirement. Thus, if the former husband retired five years early, at age
fifty, he would have incurred a 30% reduction in his retirement benefits
such that he would have received 70% of his retirement benefits, not 30%
of his retirement benefits.
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Conclusion

The trial court miscalculated the amount of the former husband's

retirement benefits to which the former wife was entitled, and, as a

result, it miscalculated the arrearage the former husband owed to the

former wife. For this reason, the trial court's judgment is reversed and

the cause is remanded for the entry of a new judgment consistent with

this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Moore, P.J., and Hanson and Bowden, JJ., concur.

Edwards, J., concurs in the result, without opinion.

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