Kathy Lambert v. Walter Lambert

Rel: October 2, 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 SPECIAL TERM, 2026 _________________________ CL-2025-0859 _________________________ Kathy Lambert v. Walter Lambert Appeal from Monroe Circuit Court (DR-24-900033) BOWDEN, Judge. Kathy Lambert ("the wife") appeals from a divorce judgment entered by the Monroe Circuit Court ("the circuit court") that divorced her and Walter Lambert ("the husband") and divided the parties' marital property. We affirm the judgment in part, reverse the judgment in part, CL-2025-0859 and remand the cause for further proceedings consistent with this opinion. Procedural Background The parties married on July 18, 2011. On July 16, 2024, the husband filed a complaint for a divorce from the wife in the circuit court. The wife filed an answer and a counterclaim for a divorce on August 16, 2024. On June 16, 2025, following ore tenus proceedings, the circuit court entered a judgment divorcing the parties, categorizing several assets as separate property of the husband, determining the value of assets deemed to be marital property, and dividing the parties' marital property. The judgment stated, in pertinent part: "The … [h]usband owned the parties' marital home, personal property and several other land parcels prior to the parties' marriage. All property owned by the [h]usband prior to the marriage and retirement benefits earned prior to the marriage and any earnings thereon are the separate estate of the … [h]usband and are not subject to division and the Court may not take any such amounts or values into consideration in this divorce. … The evidence does establish that the parties resided in the marital home …. However, the testimony of the [h]usband and [w]ife indicates that all expenses related to the marital home were paid by the [h]usband. The [h]usband further acquired property during the marriage … which was used as a rental house. The [w]ife's son was the renter, and his rent paid the mortgage payment. The [h]usband has a lien on the marital home that has a $69,000.00 amount owed. 2 CL-2025-0859 "[The h]usband worked at [Alabama River Pulp] … from 1984 until the parties' marriage. Twenty-eight years of his retirement earnings and any increases are not subject to division. The only testimony as to value is that his contributions during the marriage from 2011 to 2015 were $17,200.00. No earnings have been contributed since 2015. The Court finds the 4-year retirement earnings during the marriage and its accumulated increase since 2015 constitutes $26,316.00 in current value which is subject to division. All other portions consist of earnings placed into the account prior to the parties' marriage and accumulations thereon which are not subject to division in this divorce. "The Court finds that the marital home has a fair market value of $162,000 after consideration of the $69,000 lien due and the … Gardenia Road property has a value of $117,000 with a mortgage due of $32,000.00. The Court finds that neither party has committed marital misconduct and that the [h]usband paid substantially all of the marital bills. "The evidence established that the … Oaks property was jointly owned by [the husband] and Delois Dailey prior to the parties' marriage, the property was renovated into a rental by Delois Dailey and the [h]usband deeded his interest away in 2020. This property was not regularly used for the benefit of the marriage and is not subject to division in this divorce. "…. "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: "1. The bonds of matrimony heretofore existing between the parties are hereby dissolved and they are forever divorced from one another for and on account of incompatibility of temperament. "…. 3 CL-2025-0859 "2. All right, title and interest in the following described personal property is hereby divested out of the … [w]ife and vested in the … [h]usband subject to any encumbrances against the same: "…. "c. All of [the husband's] retirement accounts … except the $13,158.00 amount awarded to the wife. "…. "All right, title and interest in the following described personal property is hereby divested out of the … [h]usband and vested in the … [w]ife, subject to any encumbrances against the same: "…. "[d]. $13,158.00 in value of [the husband's] retirement account. "…. "5. The … [w]ife shall have all right, title and interest in the … Gardenia Road property, subject to any encumbrances thereon. The … [w]ife shall pay the remaining debt due on such property and shall make best efforts to refinance such debt out of the [husband]'s name. The [husband] shall execute a deed to the [wife] upon payment of such loan or refinance. "6. The … [h]usband shall retain all right, and interest on the … Martin Luther King property, and shall be solely responsible for the lien on such property." (Capitalization in original.) 4 CL-2025-0859 On July 15, 2025, the wife filed a motion to alter, amend, or vacate the divorce judgment, which she also styled, alternatively, as a motion to reopen the case for the purpose of taking additional evidence. The circuit court denied the wife's postjudgment motion on August 20, 2025. The wife timely appealed. Standard of Review "On appeal, questions of law and the trial court's application of the law to the facts are subject to de novo review." Samayamanthula v. Patchipulusu, 338 So. 3d 787, 792 (Ala. Civ. App. 2021). "As to questions of fact, " ' "[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)).' "Fadalla v. Fadalla, 929 So. 2d 429, 433 (Ala. 2005). Moreover, " 'an appellate court reviewing a circuit court's judgment in a divorce action is not to substitute its judgment of the facts for that of the circuit court. 5 CL-2025-0859 ... Instead, the appellate court is "simply to determine if there was sufficient evidence before the circuit court to support its decision against a charge of arbitrariness and abuse of discretion." [Ex parte Smith, 673 So. 2d 420, 422 (Ala. 1995)].' "Ex parte Elliott, 782 So. 2d 308, 311 (Ala. 2000)." Samayamanthula, 338 So. 3d at 792-93. Analysis I. Whether the circuit court erred in the classification and valuation of the husband's retirement benefits under Ala. Code 1975, § 30-2- 51(b) The wife argues that the circuit court erred in classifying all but $26,316 of the husband's retirement account as his separate property because, she says, the husband did not meet his burden to prove that a portion of the account should be excluded from the marital estate or to prove the value of the excluded portion, including its appreciation. The division of retirement benefits in a divorce case is governed by § 30-2-51(b), which provides: "(b)(1) The marital estate is subject to equitable division and distribution. Unless the parties agree otherwise, and except as otherwise provided by federal or state law, the marital estate includes any interest, whether vested or unvested, either spouse has acquired, received, accumulated, or earned during the marriage in any and all individual, joint, or group retirement benefits including, but not limited to, any retirement plans, retirement accounts, pensions, profit- 6 CL-2025-0859 sharing plans, savings plans, annuities, or other similar benefit plans from any kind of employment, including, but not limited to, self employment, public or private employment, and military employment. "(2) Notwithstanding the foregoing, unless the parties agree otherwise, the total amount of the retirement benefits payable to the noncovered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court. "(3) Any party asserting that all or a portion of his or her interest in any retirement benefits is excluded from the marital estate shall bear the burden of proving that fact and the value or amount of the excluded interest, including any active or passive income or appreciation on that interest." The Alabama Comment to § 30-2-51 states, in pertinent part: "Section 30-2-51(b)[(3)] further changes prior statutory law by placing the burden of proof on the spouse seeking to exclude his or her interest, or some portion of that interest, in a retirement plan or retirement account from the marital estate, also to be consistent with the rule prevailing in other American jurisdictions. … For example, when a spouse claims that part of his or her interest in a defined-benefit retirement plan accrued before the marriage, the burden rests on that spouse to prove the number of years of creditable service accruing prior to the marriage; absent such proof, the court shall presume that the entire interest accrued during the marriage. The statute intentionally fails to define the term 'during the marriage,' leaving it to the court to decide based on the evidence and equitable considerations the appropriate starting and ending date of the marriage for all purposes under the statute." We have affirmed a judgment that did not exclude a portion of a party's retirement account when the party asserting the exclusion 7 CL-2025-0859 provided no evidence from which the trial court could determine the amount of the excluded interest. Saucier v. Saucier, 326 So. 3d 1054, 1060-61 (Ala. Civ. App. 2020). The husband in that case appealed from a divorce judgment that awarded the wife in that case a portion of his retirement benefits. Id. at 1055. The evidence at the trial in that case revealed the following: the husband began working for a company and contributing to a 401(k) retirement account in 1979. Id. The parties were married in 1997. Id. After the parties got married, the husband continued to contribute to his retirement account until he left that job in 2012, at which time he moved his 401(k) retirement funds into an "IRA" account that was held in the form of an annuity. Id. A recent statement for the annuity showed the amount of the husband's total contributions, which apparently was the amount rolled over from the 401(k) retirement account; the total amount in withdrawals; and the annuity's then-current market value. Id. at 1055-56. The husband did not provide any evidence of the value of the contributions that he had made to his retirement account before or after the marriage or of the value of the account when the parties married. Id. at 1056. 8 CL-2025-0859 The trial court entered a judgment divorcing the parties and, in pertinent part, awarded half of the annuity to the wife. Id. The husband appealed, asserting that § 30-2-51(b)(1) prohibited the trial court from awarding to the wife any part of the retirement benefits that he had earned before the marriage. Id. at 1059. Addressing this argument, this court held: "Specifically, under § 30-2-51(b)(3), [Ala. Code 1975,] to exclude all or a part of the annuity from the marital estate, the husband had the burden of proving (1) that 'all or a portion of his ... interest in [the annuity was] excluded from the marital estate' and (2) 'the value or amount of the excluded interest, including any active or passive income or appreciation on that interest.' As the wife correctly argued at the hearing on the husband's postjudgment motion, the husband presented no evidence at trial to support any conclusion regarding 'the value or amount of the excluded interest' that he asserted the trial court could not consider in making its marital-property division. The ratio between his years of employment … and the years of the marriage provided no evidence of 'the value or amount' of any premarriage contributions or postmarriage contributions to the 401(k) retirement account. Even if the trial court accepted the husband's testimony that he had made premarriage contributions to his 401(k) retirement account, which we need not decide, the trial court still had before it no evidence from which it could determine what 'the value or amount' of any premarriage contributions might have been. Accordingly, the husband failed to satisfy his burden of proving what part of the annuity could be excluded from the marital estate, and we cannot conclude that the trial court erred by considering the entire annuity, which was held in an individual retirement 9 CL-2025-0859 account that was derived solely from the husband's 401(k) retirement account, to be part of the marital estate." Id. at 1060-61. At the trial in this case, the husband testified that he began working for Alabama River Pulp in 1984 and that he continued working for that employer until 2015. He began contributing to a 401(k) retirement account through that job in 1984 and invested money in the account each year, specifically both in years before the marriage -- 1984 to 2011 --- and during the marriage -- 2011 until 2015. The husband testified that he filed for bankruptcy in 2007 and that, at that time, he had $190,000 in the 401(k) retirement account. However, on cross- examination, he testified that his bankruptcy petition listed the value of the account at $100,705. The husband's first wife was also awarded $30,000 from that account in a prior divorce action. The husband testified that, at the time the parties were married, the value of the account was approximately $230,000 to $240,000. He also testified that, between 2011 and 2015, he contributed $17,200 to the account. Using the low end of his estimate, the husband testified that the account was worth $247,200 after his contributions made during the marriage. At the time of the trial, the account's total value was 10 CL-2025-0859 $378,369.44. Based on those numbers, the husband stated that the account was 1.53 times more valuable than it had been in 2015. Using the same multiplier, the circuit court calculated the total contributions made during the marriage to be valued at $26,316 at the time of the trial. This case differs from Saucier because the husband here presented the circuit court with evidence that some portion of the retirement account existed before the marriage -- he testified that he began contributing to the account in 1984 and did so consistently in the years before the marriage. In Saucier, the only evidence of the value of the account at issue was a recent statement. In this case, the husband testified about the value of the account at the time that the parties married, the contributions that he made during the marriage, and the then-present value of the account at the time of the trial. The husband, therefore, proved that part of his retirement account was due to be excluded because it existed before the marriage. He also provided evidence from which the circuit court could have determined the value of the excluded contributions -- the then-total value of the account less the value of the contributions made during the marriage. Therefore, we 11 CL-2025-0859 cannot say that the circuit court erred in excluding part of the husband's retirement account from the parties' marital estate. II. Whether the circuit court erred in classifying the marital residence, other real property, and an event venue as separate property under Ala. Code 1975, § 30-2-51(a) The wife argues that the circuit court erred in classifying several pieces of real property as the husband's separate property because, she says, those properties were all used for the common benefit of the marriage. The properties that the wife specifically mentions are the Four Oaks event venue, the parties' marital residence, and a house that we will refer to as the Gardenia property. As to the Gardenia property, the divorce judgment classified that piece of real property as marital property and awarded it to the wife. In support of her argument, the wife cites § 30-2-51(a), which states: "(a) If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family. Notwithstanding the foregoing, the judge may not take into consideration 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." 12 CL-2025-0859 (Emphasis added.) A. The Four Oaks event venue As to the Four Oaks event venue, the wife testified that the husband started a venue-rental business at that property for hosting parties, weddings, and other events. She testified that the husband asked her to get building-risk insurance after the parties got married and that, then, he began building the venue. She also testified that she helped pick out light fixtures and paint colors and was generally involved with the business. However, she stated that the husband did not share any of the proceeds from the business with her. The wife testified that her cellphone number was listed on the venue's Facebook page and that she received messages from potential customers. She also testified that the Four Oaks event venue had been deeded to the husband's sister and daughters in 2020. The wife stated that, because the husband had deeded the property to other family members, she would alternatively like to be awarded the value of her share of the Four Oaks event venue from another source. The husband testified that he owned the Four Oaks property before the parties got married but that his sister "actually did the building." Once his sister had spent the money to fix up the building, he deeded the 13 CL-2025-0859 Four Oaks event venue to her. The husband testified that he had never made any money from the event venue and that his sister broke ground on the building before the parties got married. He testified that he did help oversee the event venue for his sister. The wife does not contest that the husband deeded the Four Oaks event venue to other relatives; she asserts only that the husband remained involved with the business after the transfer such that the circuit court was incorrect in its conclusion that the venue was not used for the common benefit of the marriage. Because the evidence established that the husband deeded the Four Oaks event venue to other family members, who were not joined as parties to the action, the circuit court could not have divided the property between the parties. Dubose v. Dubose, 172 So. 3d 233, 243 (Ala. Civ. App. 2014) ("The general rule is that a trial court in a divorce action lacks jurisdiction to divide property legally titled in the name of a third party not joined in the divorce action."). Therefore, the only way the wife could have claimed an interest in the venue is by arguing that the husband had transferred the venue to his sister and daughters to defeat the wife's marital rights. The wife appears to have raised that argument before the circuit court, but she 14 CL-2025-0859 has abandoned the argument on appeal. As a result, we cannot say that the circuit court erred in its treatment of the Four Oaks event venue. B. The marital residence The circuit court addressed the marital residence in the divorce judgment as follows: "The … [h]usband owned the parties' marital home, personal property and several other land parcels prior to the parties' marriage. All property owned by the [h]usband prior to the marriage and retirement benefits earned prior to the marriage and any earnings thereon are the separate estate of the … [h]usband and are not subject to division and the Court may not take any such amounts or values into consideration in this divorce. … The evidence does establish that the parties resided in the marital home …. However, the testimony of the [h]usband and [w]ife indicates that all expenses related to the marital home were paid by the [h]usband." (Emphasis added.) Section 30-2-51(a) provides that a trial court "may not take into consideration any property acquired prior to the marriage of the parties … 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." Put another way, when fashioning a property award, a trial court may not consider property that one spouse acquired before the marriage unless it determines that the property was 15 CL-2025-0859 used regularly for the common benefit of the parties during the marriage. If, however, the trial court does conclude that the property acquired before marriage was regularly used for the common benefit of the parties during the marriage, whether to include the property in the division of assets rests within the trial court's discretion. Section 30-2-51(a) does not compel the trial court to award the other spouse any part of the property at issue. See Ex parte Drummond, 785 So. 2d 358, 362 (Ala. 2000) ("Nothing in the statute states that if one party's inheritance or gifts are used for the parties' common benefit then the trial judge must consider the inheritance or gifts when making the property division. In fact, the statute leaves such a determination to the discretion of the trial judge."). In its judgment, the circuit court found that it may not take the value of the marital residence into consideration when dividing the parties' property. In doing so, the circuit court implicitly found that the marital residence had not been used for the common benefit of the parties during their marriage. The wife argues that that finding is incorrect, and we agree. The circuit court found that the parties had lived at the marital residence during their marriage, and testimony indicated that they were 16 CL-2025-0859 still living there at the time of the trial, which would amount to approximately 13 years of cohabitation in the marital residence. The marital residence was therefore "used regularly for the common benefit of the parties during their marriage." § 30-2-51(a); see Harris v. Harris, 59 So. 3d 731, 736 (Ala. Civ. App. 2010) (holding that, although the wife in that case owned the marital residence before the marriage, "it is beyond dispute that the marital residence was used during the parties' marriage for their common benefit" because they lived there during the marriage); Mayhann v. Mayhann, 820 So. 2d 836, 838 (Ala. Civ. App. 2001) ("The marital residence, in which the parties resided during the entire length of their marriage, can hardly be considered property that was not 'used regularly for the common benefit of the parties during their marriage.' " (quoting § 30-2-51(a))); Nichols v. Nichols, 824 So. 2d 797, 803 (Ala. Civ. App. 2001) (holding that a home that was used by both parties during the marriage was not separate property). See also Culver v. Culver, 199 So. 3d 772, 777 (Ala. Civ. App. 2016) ("Although the husband paid the monthly mortgage payments and only his name was listed on the mortgage, those facts do not justify the trial court's failure to award the wife an equitable share of the marital assets acquired during the 17 CL-2025-0859 parties' 13 years of marriage. The marital home was 'used regularly for the common benefit of the parties during their marriage,' for 9 of the 13 years that the parties were married."). The judgment places some weight on the evidence indicating that the husband paid the household expenses; however, that fact alone, as noted in Culver, does not destroy the fact that these parties shared the residence for 13 years of marriage or support a finding of no common-benefit usage. The circuit court therefore erred in finding that it could not consider the parties' marital residence in the property division in this case. In so holding, we do not hold that the wife is entitled to any share of the marital residence. Once a property is properly determined to have been used regularly for the common benefit of the parties, whether to consider it in the property division, and in what measure, remains committed to the circuit court's sound discretion. The error we identify is the circuit court's treatment of the residence as separate property that, as a matter of law, it could not consider -- not any particular allocation of that asset. The judgment is therefore reversed in part, and the cause is remanded for the circuit court to exercise its discretion regarding 18 CL-2025-0859 whether to include the martial residence in fashioning its property division. If it does, the circuit court is further directed to reconsider its division of the marital estate and its denial of periodic alimony as an equitable whole, taking into account the length of the marriage; the ages and health of the parties; their earning capacities and future prospects; the source, value, and type of property involved; the standard of living established during the marriage; and the conduct of the parties. Davis v. Davis, 237 So. 3d 892, 897-98 (Ala. Civ. App. 2017). III. Whether the circuit-court judge should be disqualified from presiding over this case The wife asserts that evidence introduced at the trial revealed that counsel for the husband had represented the husband during a prior divorce action, and that, during that case, had practiced law at a law firm bearing the same surname as the judge presiding over this matter. The wife argues that this, taken in tandem with the errors she has alleged, warrants that the case be remanded for proceedings before a different circuit-court judge. By the wife's own admission, she raises this issue for the first time on appeal, despite being made aware of some potential former business association between the presiding judge and counsel for the husband at the trial. As a result, she failed to preserve the issue for 19 CL-2025-0859 appellate review. S.K. v. Madison Cnty. Dep't of Hum. Res., 990 So. 2d 887, 895 (Ala. Civ. App. 2008) ("This court cannot consider arguments raised for the first time on appeal. Our review is restricted to the evidence and the arguments considered by the trial court."). Conclusion Based on the foregoing, we affirm the judgment insofar as it excluded the husband's premarriage contributions to his 401(k) retirement account from the parties' marital estate and excluded the Four Oaks event venue as property subject to division. We reverse the judgment insofar as the circuit court concluded that it could not consider the parties' marital home in the property division. We remand the cause for further proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur. 20