Lacey v. Lacey

Decision Date15 February 2013
Docket Number2110692.
PartiesDana J. LACEY v. Russell S. LACEY.
CourtAlabama Court of Civil Appeals

126 So.3d 1029

Dana J. LACEY
v.
Russell S. LACEY.

2110692.

Court of Civil Appeals of Alabama.

Feb. 15, 2013.



W.N. Watson of Watson & Neeley, LLC, Fort Payne, for appellant.

[126 So.3d 1030]

Gary W. Lackey of The Lackey Law Firm, Scottsboro, for appellee.


On Application for Rehearing

THOMPSON, Presiding Judge.

This court's opinion of December 14, 2012, is withdrawn, and the following is substituted therefor.

Dana J. Lacey (“the wife”) and Russell S. Lacey (“the husband”) were divorced by a February 6, 2007, judgment of the trial court that incorporated the parties' settlement agreement. Pursuant to the divorce judgment, the wife was awarded, among other things, the marital residence, a parcel of real property, and certain financial assets. The husband was awarded all the parties' remaining real estate and the parties' entire interest in a business known as “Double Delta, Inc.” In addition, paragraph 14 of the divorce judgment provided:

“14. That the [husband] shall pay to the [wife] $2,500 per month for 96 months with said payments to terminate prior to the 96 payments only upon her death. The total of $240,000 shall be secured by a mortgage or other security interest in real and/or personal property sufficient to cover any remaining balance due under the terms of this order and by life insurance in an amount sufficient to make the payment in the event of the [husband]'s death. The amount of security or insurance required shall decrease with each payment.

“The parties understand that the initial security shall be second mortgages on properties and subordinate to existing indebtedness on the business of the [husband]. That the parties further understand and it is the order of this court that from time to time refinancing or other modifications of the financial arrangement of the [husband]'s business may be required and the [wife] shall forthwith execute any and all documents necessary to allow said modifications or refinancing of the [husband]'s business for so long as the [wife] remains fully secured for said payments.”

Neither party appealed the divorce judgment.


On May 30, 2008, the husband filed a petition to modify various portions of the divorce judgment. In pertinent part, the husband alleged that paragraph 14 of the divorce judgment constituted an award of rehabilitative alimony, and he sought a termination of that purported alimony obligation. The wife answered and argued, in pertinent part, that paragraph 14 constituted a nonmodifiable property division in the nature of alimony in gross. The wife later filed a petition asking the trial court to enforce the divorce judgment; in that petition, she alleged that the husband had failed to make the payments required by paragraph 14 of the divorce judgment.

The trial court conducted an ore tenus hearing. Neither party testified at the hearing. The parties stipulated that, in July 2008, the wife remarried, and in May 2009 the husband stopped making the payments ordered in paragraph 14 of the divorce judgment.

The attorney who represented the husband during the divorce proceedings testified that, at some point, the husband contacted him and informed him there was a dispute between the parties regarding whether paragraph 14 constituted an award of periodic alimony or alimony in gross. In response, the attorney sent a February 2008 letter to the wife's attorney concerning that dispute; that letter was not admitted into evidence. The attorney who represented the wife during the divorce proceedings testified that he drafted the divorce judgment and that the husband's

[126 So.3d 1031]

attorney approved that draft before it was submitted to the trial court.

On November 17, 2011, the trial court entered a modification judgment in which it determined that the obligation set forth in paragraph 14 of the divorce judgment was one for periodic alimony, and it granted the husband's request that that obligation be terminated. The trial court denied all other relief requested by the parties.

The wife filed a postjudgment motion. On March 5, 2012, the trial court entered an order vacating the November 17, 2011, judgment and entering a new judgment. The trial court set forth in detail its finding that the award set forth in paragraph 14 of the divorce judgment constituted an award of periodic alimony, and it terminated the husband's obligation to pay that award. The wife timely appealed.

The wife argues on appeal that the trial court erred in interpreting paragraph 14 of the parties' divorce judgment as an award of periodic alimony rather than alimony in gross. With regard to the characteristics of periodic alimony and alimony in gross, this court has stated:

“Our supreme court has explained the difference between periodic alimony and alimony in gross. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Alimony in gross is considered ‘compensation for the [recipient spouse's] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple's jointly owned assets is not practicable.’ [Hager v. Hager ], 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award ‘must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.’ Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App.1986). It must also be payable out of the present estate of the paying spouse as it exists at the time of the divorce. [Hager v. Hager ], 293 Ala. at 55, 299 So.2d at 750. In other words, alimony in gross is a form of property settlement. [Hager v. Hager ], 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award is generally not modifiable. Id.

“Periodic alimony, on the other hand, ‘is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].’ [Hager v. Hager ], 293 Ala. at 55, 299 So.2d at 750. Its purpose ‘is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.’ O'Neal v. O'Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996) (emphasis added). Periodic alimony is modifiable based upon changes in the parties' financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999). The paying spouse's duty to pay periodic alimony may be terminated by petition and proof that the recipient spouse has remarried or is cohabiting with a member of the opposite sex. Ala.Code 1975, § 30–2–55.”

TenEyck v. TenEyck, 885 So.2d 146, 151–52 (Ala.Civ.App.2003).


In determining the nature of an award of alimony, our supreme court has held that when the award is unspecified, the source of the payment and the purpose are of prime importance. Hager v. Hager, 293 Ala. 47, 55, 299 So.2d 743, 750 (1974) (emphasis added). See also

[126 So.3d 1032]

TenEyck v. TenEyck, 885 So.2d at 152 (“ ‘When the type of award is not specifically stated in the divorce [judgment], the source of payment and its purpose are important factors in determining whether an award is periodic alimony or alimony in gross.’ ” (quoting Cheek v. Cheek, 500 So.2d 17, 19 (Ala.Civ.App.1986))); Walls v. Walls, 860 So.2d...

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  • Wikle v. Boyd
    • United States
    • Alabama Court of Civil Appeals
    • December 20, 2019
    ...than 30 days after the judgment making that award. Singleton v. Harp, 689 So. 2d 880, 882 (Ala. Civ. App. 1996) ; Lacey v. Lacey, 126 So. 3d 1029, 1035 (Ala. Civ. App. 2013) ("An award of alimony in gross is in the nature of a property division, and such an award is not subject to modificat......
  • Turney v. Turney
    • United States
    • Alabama Court of Civil Appeals
    • December 2, 2022
    ...but indebtedness in the form of alimony in gross or a property settlement is dischargeable."). 46 This court in Lacey v. Lacey, 126 So.3d 1029, 1034 (Ala. Civ. App. 2013), recognized the foregoing distinction when it noted that a periodic-alimony obligation does not survive the death of the......
  • Andrews v. Andrews
    • United States
    • Alabama Court of Civil Appeals
    • December 15, 2017
    ...said, the obligation was one for alimony in gross, or a property settlement, as opposed to periodic alimony. See Lacey v. Lacey, 126 So.3d 1029, 1035 (Ala. Civ. App. 2013) ("An award of alimony in gross is in the nature of a property division, and such an award is not subject to modificatio......
  • Beck v. Beck
    • United States
    • Alabama Court of Civil Appeals
    • October 11, 2013
    ...in gross” must be payable out of the present estate of the paying spouse as it exists at the time of the divorce. Lacey v. Lacey, 126 So.3d 1029, 1031 (Ala.Civ.App.2013), cert denied,126 So.3d 1035 (Ala.2013). In this case, the record does not contain sufficient evidence from which the tria......
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