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.
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"[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.
"….
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"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.)
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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.
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... 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, profit6
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
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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.
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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
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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 crossexamination, 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
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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
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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."
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(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
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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
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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
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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
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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
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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
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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
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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.
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