Estate of Weller, Matter of

• Decision Date: 04 November 1988
• Docket Number: No. 17963,17963
• Court: West Virginia Supreme Court
• Parties: , 79 A.L.R.4th 1 In the Matter of the ESTATE OF Eli Joel WELLER, M.D., Deceased.

Page 712

374 S.E.2d 712

179 W.Va. 804, 79 A.L.R.4th 1

In the Matter of the ESTATE OF Eli Joel WELLER, M.D., Deceased.

No. 17963.

Supreme Court of Appeals of West Virginia.

Nov. 4, 1988.

Syllabus by the Court

1. "While as a general rule alimony does not survive the death of the payor former spouse, where there are compelling equitable considerations which militate in favor of making alimony a charge against a deceased former spouse's estate, the circuit court has the power to make such an award pursuant to the same authority which entitled a court of equity to modify any alimony award to reflect changed circumstances." Syl. pt. 2, In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978).

2. "In order for alimony to be binding on an estate the divorce decree or property settlement agreement if it is ratified or approved in the court decree must specifically state that the obligation is binding on the estate." Syl. pt. 4, Prather v. Prather, 172 W.Va. 348, 305 S.E.2d 304 (1983).

3. West Virginia Code § 48-2-15(f), as amended in 1984, states in part: "Where alimony is to be paid pursuant to the terms of a separation agreement which does not state whether the payment of alimony is to continue beyond the death of the payor party or is to cease, or where the parties have not entered into a separation agreement and alimony is to be awarded, the court shall specifically state as a part of its order whether such payments of alimony are to be continued beyond the death of the payor party or cease."

4. Where the provisions of West Virginia Code § 48-2-15(f) are not applicable, an alimony award will be characterized as "alimony in gross" only if the award grants alimony from which one can determine the total amount to be paid as well as the precise time such payments will cease. In the absence of a contrary intention, the right to receive alimony in gross vests on the date it is ordered and, in the event of the payor's death, the amount due becomes a charge against the payor's estate.

W. Dean Delamater, Hagg & Bonach, Weirton, for Auguste Weller.

Ted M. Kanner, Forman, Kanner & Crane, Charleston, for appellee.

BROTHERTON, Justice:

Following a marriage of almost six years, Dr. Eli Joel Weller, age sixty-eight, and Mrs. Auguste Weller, age fifty-five, were divorced by an order of the Circuit Court of Brooke County entered on July 30, 1983. The circuit court considered the parties' financial needs, earnings and earning abilities, ages, the length of their marriage, the extent of their real and personal property, and the income that each derived from that property, as well as the inequitable conduct of both parties, and entered an order awarding Mrs. Weller alimony for a thirty-six month period, $300.00 per month for the first twenty-four months and $150.00 per month for the final twelve months. The court also awarded Mrs. Weller a lump sum of $4,000.00 which was not to be treated as alimony, but instead represented Mrs. Weller's interest in the marital savings and reimbursement to her for medical and household expenses which should have been paid by Dr. Weller. This lump sum, without interest, was payable on June 1, 1984.

Dr. Weller had paid eight of the monthly alimony installments of $300.00 when he died on April 24, 1984. Mrs. Weller filed a Proof of Claim against Dr. Weller's estate for the remaining twenty-eight installments, with interest. The executor and beneficiaries of the estate resisted the claim. Following a hearing, Fiduciary Commissioner William T. Fahey found on December 19, 1984, that because the divorce decree did not contain specific language binding the estate to make future alimony payments in the event of Dr. Weller's death, Mrs. Weller was not entitled to receive the payments after his death. This finding was affirmed by the County Commission of Hancock County on November 6, 1985. Mrs. Weller then appealed to the Circuit Court of Hancock County, and on November 13, 1986, that court affirmed the denial of the installment payments beyond the month of Dr. Weller's death. ¹

The issue now before this Court is whether the Circuit Court of Hancock County erred when it refused to require the Estate of Eli Joel Weller, M.D. to continue making the monthly installment payments on the alimony award to the appellant, Mrs. Auguste Weller, under the July 30, 1983 divorce decree, beyond the month of his death, April, 1984.

Mrs. Weller claims that the divorce decree awarded her alimony in gross totaling $9,000.00 and that the right to receive this amount vested as of the date of the divorce decree. Therefore, she argues that the installments remaining to be paid after Dr. Weller's death are a judgment enforceable against Dr. Weller's estate just as any other judgment would have survived his death and been payable from the estate. We agree with Mrs. Weller and reverse the decision of the Circuit Court of Hancock County for the reasons set forth below.

This Court has long recognized that there are circumstances in which alimony may be made payable from the estate of a payor former spouse. ² In syllabus point 2 of In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978), we stated:

While as a general rule alimony does not survive the death of a payor former spouse, where there are compelling equitable considerations which militate in favor of making alimony a charge against a deceased former spouse's estate, the circuit court has the power to make such an award pursuant to the same authority which entitles a court of equity to modify any alimony award to reflect changed circumstances. ³

Id., 162 W.Va. at 181, 250 S.E.2d at 47.

Following the Hereford decision this Court formulated a "better rule" in Prather v. Prather, --- W.Va. ----, 305 S.E.2d 304 (1983). Specifically, the Court said:

We believe that the better rule is that in order for alimony to be binding on an estate the divorce decree, or property settlement agreement if it is ratified or approved in the court decree, must specifically state that the obligation is binding on the estate. ⁴

Id., 172 W.Va. at 352-353, 305 S.E.2d at 309.

The substance of the rule enunciated in Prather was codified by the West Virginia Legislature in 1984 and became what is now West Virginia Code § 48-2-15(f) (1986). ⁵ However, this statute is not retroactive with respect to alimony payments and is therefore not dispositive of the issue in this case. ⁶ While the respondent argues that the divorce decree did not state that alimony obligations were to be binding on the estate, and thus urges this Court to follow the "better rule" discussed in Prather, we believe the better result will be reached in this case by examining the plain language of the divorce decree and applying an exception to our general rule that alimony does not survive the death of a payor former spouse.

The June 30, 1983 divorce decree granted to Mrs. Weller alimony which is properly characterized as alimony in gross. Black's Law Dictionary defines "alimony in gross" as follows:

Alimony in gross, or in a lump sum, is in the nature of a final property settlement, and hence in some jurisdictions is not included in the term "alimony," which in its strict or technical sense contemplates money payments at regular intervals. Refers to those alimony arrangements where entire award is a vested and determined amount and not subject to change. Imbrie v. Imbrie, 94 Ill.App.2d 60, 236 N.E.2d 381, 383. ⁷

Black's Law Dictionary 67 (5th ed. 1979). This divorce decree entitled the appellant to definite alimony payments which were fixed to terminate at a definite time. The obligation to pay Mrs. Weller $300.00 a month for twenty-four months and $150.00 a month for twelve months was separate from the $4,000.00 lump sum award in both form and purpose. The decree specified that the lump sum was "not to be treated as alimony" as it represented Mrs. Weller's interest in the marital savings and reimbursement to her for money spent during the marriage on items that should have been paid for by Dr. Weller. However, the decree did not label the alimony award nor did it contain qualifying language which attempted to limit the appellant's right to receive these payments. For example, the decree did not state that Mrs. Weller's right to alimony would terminate in the event of either her remarriage or Dr. Weller's death, in which case we would characterize the award as "periodic alimony." ⁸ While we recognize the inadequacies of the decree in failing to either label the alimony award ⁹ or explain its specific purpose, we nonetheless believe the payment terms indicate that Mrs. Weller had a vested right to receive a total sum of $9,000.00 from her former spouse over a three-year period and that her award may therefore be properly characterized as "alimony in gross." ¹⁰

As we noted above, W.Va. Code § 48-2-15(f), as amended in 1984, requires that separation agreements and divorce orders specifically state whether alimony payments are to be continued beyond the death of the payor. While we hope that this requirement eliminates the drafting of ambiguous decrees such as the one in question here, ¹¹ it is not applicable to the Wellers' 1983 divorce decree. We find, therefore, that where the provisions of W.Va. Code § 48-2-15(f) are not applicable, an alimony award will be characterized as "alimony in gross" only if the award grants alimony from which one can determine the total amount to be paid as well as the time such payments will cease. In the absence of a contrary intention, the right to receive alimony in gross vests on the date it is ordered and, in the event of the payor's death, the amount due becomes a charge upon the payor's estate. Having determined that the appellant was awarded alimony in gross totaling $9,000.00, we conclude that Mrs. Weller is entitled to the $6,600.00 she stood to receive from Dr. Weller had he lived, such amount now being payable from Dr. Weller's estate. The Circuit Court of ...