Man who won Lotto before divorce must split his winnings

December 04, 1990|By Joel McCord | Joel McCord,Sun Staff Correspondent

ANNAPOLIS -- Herman and Viola Alston had been separated for two years. Their divorce papers were on file at the courthouse when Mr. Alston hit the D.C. Lotto for $1.1 million. Was Mrs. Alston entitled to a share of that?

You bet, the Court of Special Appeals said yesterday in the first such case it has reviewed. She gets half of the $44,000 annuity Mr. Alston won for the next 18 years, the court ruled, upholding a lower court decision.

Because the Alstons' divorce wasn't final, the winnings were marital property, the court said in upholding a ruling by Baltimore County Circuit Judge William M. Nickerson.

Mr. Alston gets to keep the first two $44,000 payments he received, but must split the rest 50-50. Since early 1989, when Mrs. Alston filed her claim, the lottery payments had been withheld until the case was decided.

Mr. Alston, a former District of Columbia corrections officer, conceded that the winnings were marital property, his lawyer, AnnM. Turnbull, explained yesterday. But because of the "facts of the case, we felt it would not result in a 50-50 division."

The Alstons split up in 1985 after a stormy 25 years of marriage. Two years later, Mr. Alston hit it big in the D.C. Lotto. He received two payments of $44,000 in 1987 and 1988.

Meanwhile, Mrs. Alston had filed for divorce in Baltimore Circuit Court on grounds of a voluntary separation. But when she heard of her estranged husband's good fortune, she withdrew that suit and filed a new one in Baltimore County on grounds of adultery and asked for half his winnings.

After a trial in October 1989 in which each accused the other of various infidelities and assaults, Judge Nickerson awarded the divorce to Mrs. Alston as well as half Mr. Alston's winnings.

In his appeal, Mr. Alston complained that the judge failed to take into account that the purchase of the lottery ticket had nothing to do with any plans the couple may have made while they were together. And winning the money was strictly a fluke, he said.

He also argued that there was not enough evidence that he committed adultery and claimed that Judge Nickerson ruled in favor of Mrs. Alston only to allow for the monetary award that came later.

But Maryland's intermediate appellate court dismissed the arguments. While it may be accurate that Mr. Alston bought the lottery ticket long after he and his wife had separated, that was only one of 10 factors the trial judge must weigh, Judge John J. Bishop Jr. wrote for the three-judge panel.

And Mr. Alston's claim that the evidence didn't support the adultery charge is "without merit," the court ruled.

The court also rejected claims that Judge Nickerson failed to take into account that Mr. Alston was deeply in debt and would be broke without his Lotto winnings. He could get a job, Judge Bishop wrote.

The lower court correctly found that Mr. Alston "put forth little effort to win the D.C. Lotto," that Mrs. Alston's "contributions to the marriage and family were significantly greater than [Mr. Alston's]" and that his adultery was "a general pattern of behavior," Judge Bishop concluded.

Ms. Turnbull said she probably will ask the Court of Appeals to review the decision.

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