Cheek v. Cheek

• Decision Date: 20 August 1986
• Citation: 500 So.2d 17
• Parties: Robert L. CHEEK, Jr. v. Shirley Beasley CHEEK. Civ. 5238.
• Court: Alabama Court of Civil Appeals

Page 17

500 So.2d 17

Robert L. CHEEK, Jr. v. Shirley Beasley CHEEK.

Civ. 5238.

Court of Civil Appeals of Alabama.

Aug. 20, 1986.

Rehearing Denied Sept. 24, 1986.

Certiorari Denied Dec. 5, 1986

Alabama Supreme Court 86-24.

Robert L. Cheek, Jr., Montgomery, for appellant.

Benjamin E. Pool, Montgomery, for appellee.

WRIGHT, Presiding Judge.

Shirley and Robert Cheek were divorced in January 1982. The decree of divorce incorporated a separation agreement of the parties concerning payment of alimony. In January 1985, the husband filed a petition to terminate the alimony, due to the wife's remarriage. The husband's petition was based on Section 30-2-55, Code of Alabama 1975, which requires the termination of periodic alimony upon the remarriage of the party receiving such alimony. The wife filed a petition for the husband to be held in contempt for failure to pay according to the decree. The trial court denied the husband's petition to terminate alimony, finding that the agreement between the parties, which was incorporated in the divorce decree, provided for alimony in gross, and not for periodic alimony to which § 30-2-55 would apply. The court also held the husband in contempt for willfully failing to make payments as ordered, assessed the husband $500 for the wife's attorney fees, and denied the husband's motion for new trial.

The husband appeals. We affirm.

The trial court, in denying the husband's petition to terminate alimony, concluded that the pertinent terms of the agreement incorporated into the divorce decree provided for payment of alimony in gross and/or property settlement and not periodic alimony.

The record reveals that the 1982 decree of divorce in pertinent part provided:

"(d) The Husband shall pay to the Wife sixty (60) consecutive monthly installments of $1250.00 each, and thereafter sixty-one (61) consecutive monthly installments of $1000.00 each. Said payments shall be paid to the Wife on the 1st day of each month subsequent to the rendition of said judgment of divorce, commencing on the first day of February, 1982. Any installment, if not paid when due, shall bear interest from the due date at the rate of 10% per annum. The Husband's obligation under this paragraph shall continue notwithstanding his death, and the balance remaining unpaid at the time of his death shall be a lawful claim upon his estate, and binding upon his representatives, heirs, and devisees and legatees. Further, said payments shall not abate or be affected by the Wife's remarriage to a third person, nor shall said payments abate or be affected by the Wife becoming employed or self-supporting."

On appeal, the husband contests the court's characterization. Section 30-2-55, Code of Alabama 1975, provides:

"Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex."

The husband relies on Alabama case law providing that the obligation to pay periodic alimony ceases upon the remarriage of the receiving spouse as directed under § 30-2-55. Tillis v. Tillis, 405 So.2d 938 (Ala.Civ.App.1981). In further support of his argument, the husband cites Oliver v. Oliver, 431 So.2d 1271 (Ala.Civ.App.1983), where the court held that § 30-2-55 emasculates an express agreement that periodic alimony shall continue after the remarriage of the receiving spouse. However, Alabama law distinctly recognizes that this provision of the Code applies only to awards of periodic alimony and that it does not affect awards of alimony in gross. Higginbotham v. Higginbotham, 367 So.2d 972 (Ala.Civ.App.1979).

Alimony in gross must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974); Montgomery v. Montgomery, 275 Ala. 364, 155 So.2d 317 (1963); Kenchal v. Kenchal, 440 So.2d 567 (Ala.Civ.App.1983). In this case, the time and amount of payment are certain. The husband must pay the wife $1,250 per month for sixty consecutive months, and $1,000 per month for the following sixty-one consecutive months. The award is non-modifiable and vested. Hager v. Hager, supra.

The husband further contends that the plain language of the divorce agreement expresses that alimony payments are for the support and maintenance of wife and that there is no specific language to evidence that the allowance was intended to be in gross. The specific designation of an alimony award as being in gross is not necessary, and lack of such a label will not defeat a provision of a divorce agreement which provides in substance for an award of alimony in gross. The substance of the award takes precedence over its label. Hartsfield v. Hartsfield, 384 So.2d 1097 (Ala.Civ.App.), cert. denied, 384 So.2d 1100 (Ala.1980). When the type of award is not specifically stated in the divorce agreement, the source of payment and its purpose are important factors in determining whether an award is periodic alimony or alimony in gross. Hag...