Burrell v. Burrell

• Decision Date: 12 June 2007
• Docket Number: No. 102,470.,102,470.
• Parties: In re the Marriage of Wayne E. BURRELL, Petitioner/Appellant, v. Brenda D. BURRELL, now Webb, Respondent/Appellee.
• Court: Oklahoma Supreme Court

192 P.3d 286

2007 OK 47

In re the Marriage of Wayne E. BURRELL, Petitioner/Appellant, v. Brenda D. BURRELL, now Webb, Respondent/Appellee.

No. 102,470.

Supreme Court of Oklahoma.

June 12, 2007.

Certiorari to the Court of Civil Appeals, Division 1

¶ 0 In 1997, the petitioner/appellant, Wayne E. Burrell (husband), and the respondent/appellee, Brenda A. Burrell, now Webb (wife), were divorced in a Georgia court. The divorce decree incorporated an agreement of the parties requiring that the husband pay the wife support alimony of $3,300.00 monthly until the wife died along with mandatory language that the agreement would be governed exclusively by Georgia law. Following the wife's remarriage in Oklahoma, the husband domesticated the Georgia decree. Thereafter, he filed a petition to terminate the support alimony obligation. The trial court refused to apply the choice of law provision as neither party resided in Georgia. The husband was ordered to continue payment of support alimony based on a determination that the language referring to payment of support until death waived the husband's right to seek termination. Reading the term "only" into the alimony provision, the Court of Civil Appeals affirmed. It concluded that Georgia law requiring termination of support alimony on remarriage, absent a provision otherwise, was repugnant to Oklahoma's statute, 43 O.S. 2001 § 134(B), which provides for termination of support on the death or remarriage of the recipient, absent a showing of need within 90 days of the remarriage. We hold that termination of the support alimony obligation is supported both by Georgia and Oklahoma statutory law and jurisprudence.

COURT OF CIVIL APPEALS OPINION VACATED; REVERSED AND REMANDED.

Jim Pearson, Jim Pearson, P.C., Oklahoma City, OK, for petitioner/appellant.

Sue E. Buck, Hugo, OK, for respondent/appellee.

WATT, J.

¶ 1 Certiorari was granted to address a single issue. The question presented is whether support payments are subject to termination on remarriage under a Georgia divorce decree requiring payment of support until the death of the wife.

¶ 2 We hold that the support alimony provision providing for payment of support until the wife's death terminates the husband's duty to make alimony payments upon the wife's remarriage under both Georgia¹ and Oklahoma statutory and jurisprudential law.² The alignment of Georgia and Oklahoma law extinguishes any necessity to discuss full faith and credit,³ comity⁴ or public policy arguments.⁵

FACTS AND PROCEDURAL HISTORY

¶ 3 On September 20, 1997, the parties were divorced. The Georgia decree incorporated the agreement of the parties that: 1) the husband would pay the wife support alimony on the fifteenth of each month "until the Wife dies;"⁶ and 2) the agreement, its application and interpretation should be governed "exclusively by the laws of the State of Georgia."⁷

¶ 4 After the divorce, the husband moved to Michigan and the wife relocated to Oklahoma, where she remarried on May 31, 2003. Almost six months later, on November 21, 2003, the husband registered the Georgia decree in the District Court of Choctaw County pursuant to the Uniform Enforcement of Foreign Judgments Act, 12 O.S.2001 § 719, et seq. The husband filed a petition to terminate the support obligation on January 16, 2004. He asserted that the wife had failed to make an application for continued support within 90 days of her remarriage as required by 43 O.S.2001 § 134(B)⁸ and that, pursuant to Georgia law, the support obligation terminated upon the wife's remarriage. In response, the wife filed a motion for the declaration of her rights under the foreign divorce decree asserting that Oklahoma law should apply and that the alimony payments should continue despite her remarriage.

¶ 5 By agreement of counsel, the cause was submitted to the trial court on the pleadings and the briefs. The trial court found that: application of the choice of law provision contravened Oklahoma's fundamental policy favoring settlements and compromises; Oklahoma law should apply because of the lack of a substantial relationship between the parties and Georgia; and the right to terminate support alimony was waived by the provision in the agreement providing that the husband should pay support until the wife's death. In an opinion promulgated on September 22, 2006, the Court of Civil Appeals read the term "only" into the settlement,⁹ agreeing with the trial court's analysis and affirming the judgment. The appellate court denied rehearing on November 13, 2006. We granted certiorari on March 12, 2007.

¶ 6 UPON THE WIFE'S REMARRIAGE SUPPORT ALIMONY DESIGNATED AS PAYABLE UNTIL THE WIFE'S DEATH IS SUBJECT TO TERMINATION UNDER BOTH GEORGIA AND OKLAHOMA STATUTORY LAW AND JURISPRUDENCE.

¶ 7 Despite the provision in the agreement calling for the application of Georgia law, the wife asserts that the cause should be governed by 43 O.S.2001 § 134(B)¹⁰ and the jurisprudence which interprets the statutory provision.¹¹ The wife contends that, when the agreement is measured by these standards, the husband's duty to continue to pay support survives her remarriage. Conversely, the husband argues that his support obligation has been extinguished under both Georgia and Oklahoma law. We agree that the husband's argument is convincing under both states' statutes and jurisprudential standards.

a. Analysis of Georgia statute and caselaw.

¶ 8 The applicable Georgia statutory provision is Ga.Code 1982 § 19-6-5. It provides in pertinent part:

"... (b) All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided...."

The Georgia Supreme Court has specifically addressed the "otherwise provided" language of the statute. In Daopoulos v. Daopoulos, 257 Ga. 71, 73, 354 S.E.2d 828 (1987), it held that, in order to avoid the general rule of termination of support on remarriage, the agreement must expressly refer to the remarriage of the recipient and specify that the event shall not terminate the permanent alimony obligations. Here, the language of the alimony provision provides only that the alimony will continue until the wife's death. It does not, as Daopoulos requires, address the remarriage issue nor does it provide that, in such an event, alimony will continue.

¶ 9 Georgia's highest court has remained faithful to Daopoulos. The appellate court has determined that utilization of the term "permanently" in association with alimony obligations is insufficient to require continued payment after remarriage.¹² Particularly instructive here are Findley v. Findley, 280 Ga. 454, 629 S.E.2d 222 (2006) and Metzler v. Metzler, 267 Ga. 892, 485 S.E.2d 459 (1997). In Findley, the Georgia court determined that the obligation to pay support terminated upon the death of the obligor unless there was a clear expression of intent to extend payments beyond death. More importantly, in Metzler, where the support provision provided that alimony would terminate upon the death of either party, the language was held insufficient to preserve the wife's right to support after she remarried.

¶ 10 Here, the alimony provision merely provides that the wife is entitled to receive alimony payments until her death.¹³ There is no reference in the agreement regarding the wife's remarriage, nor any indication that alimony should continue beyond that event. Undoubtedly, when measured by Georgia statutory and jurisprudential standards, the wife is not entitled to continued alimony payments subsequent to her remarriage.

b. Application of Oklahoma statutory and jurisprudential standards.

¶ 11 The clear, explicit, unmistakable and mandatory¹⁴ language of 43 O.S. 2001 § 134(B)¹⁵ directs trial courts to provide in divorce decrees that, upon death or remarriage of the recipient, unaccrued alimony payments shall cease. Recipients may avoid termination of alimony payments if, within 90 days of the date of the wedding, they commence an action to demonstrate that the alimony is still needed and that the circumstances have not rendered payment inequitable.

¶ 12 The wife relies on Stuart v. Stuart, 1976 OK 107, 555 P.2d 611, for the proposition that if a decree contains no indication that the parties intend that support terminate on death or remarriage of the wife, the same remains payable. Because Stuart is distinguishable on its facts, the reliance is misplaced.

¶ 13 The Stuart Court held that the evidence supported a finding that the decree was a consent decree which could not be modified and should not result in termination of support on death or remarriage. Nevertheless, in Stuart, the property settlement agreement did not designate whether the alimony payment, or any portion thereof, was support alimony or alimony in lieu of property division. Here, there is no such ambiguity. The agreement clearly designates the alimony as such and contains a separate provision encompassing the division of property.¹⁶

¶ 14 The duty of the husband to make continuing support payments is not required under Oklahoma law for multiple reasons. First, the wife did not commence any action in an attempt to demonstrate her continued need or the husband's ability to pay the awarded monthly support. We considered almost identical statutory language¹⁷ in Kildoo v. Kildoo, 1989 OK 6, 767 P.2d 884. In so doing, we determined that the ninety day period would not be extended either because the recipient misconstrued the divorce decree or misunderstood the legal consequences of failing to commence such an action. Here, the wife did not commence an action in an attempt to require continuation of the support payments. Rather, she merely defended the husband's suit to terminate payment, which was filed well outside the ninety day period of the statutory provision.

¶ 15 Second, the language of the decree, considered in light of Oklahoma...