Ex Parte Brunner, 1070931.

• Decision Date: 21 November 2008
• Docket Number: 1070931.
• Citation: 10 So.3d 24
• Parties: Ex parte Harry Franklin BRUNNER. (In re Harry Franklin Brunner v. Beverly T. Brunner Ormsby).
• Court: Alabama Supreme Court

10 So.3d 24

Ex parte Harry Franklin BRUNNER (In re Harry Franklin Brunner v. Beverly T. Brunner Ormsby).

1070931.

Supreme Court of Alabama.

November 21, 2008.

(Cullman Circuit Court, DR-03-351.01, Sandra H. Storm, Judge; Court of Civil Appeals, 2061030).

Daniel H. Chambers of Gorham & Cason, Birmingham, for petitioner.

Submitted on petitioner's brief only.

Prior report: Ala.Civ.App., 10 So.3d 18.

PER CURIAM.

WRIT DENIED. NO OPINION.

LYONS, WOODALL, STUART, SMITH, and PARKER, JJ., concur.

SEE, BOLIN, and MURDOCK, JJ., dissent.

MURDOCK, Justice (dissenting).

On July 15, 2003, Harry Franklin Brunner ("the former husband") and Beverly T. Brunner Ormsby ("the former wife") were divorced by a judgment of the Cullman Circuit Court. The judgment, based on an agreement between the parties, provided, in part as follows:

"1. That the Husband shall pay to the Wife the sum of Two Thousand & No/100 Dollars ($2,000.00) per month as alimony in gross. ... The Husband's obligation hereunder shall terminate upon the first to occur of the following events: the Husband is no longer a full-time active sitting Judge,¹ death of the Husband, or death of the Wife. It is the intention of the parties that this transfer not be taxed to the Wife or deductible by the Husband."

The issue in this case is whether the above-described payments constitute a distribution of marital property and, specifically, constitute alimony in gross, or whether instead they must be considered periodic alimony. The resolution of this issue in turn controls the disposition of the former husband's petition to terminate those payments in light of the former wife's remarriage.²

In finding the payments to be alimony in gross, the trial court first stated that the parties "clearly designated the award as alimony in gross." Labels applied by the parties or by the trial court, however, are not dispositive; it is the true nature of the obligation that matters. "The substance of the award takes precedence over the form or label." Kenchel v. Kenchel, 440 So.2d 567, 569 (Ala.Civ.App.1983). "[T]he labels provided in a judgment are not controlling on the question of the true nature of the obligation." Anderson v. Anderson, 686 So.2d 320, 324 (Ala.Civ.App.1996). It is "the effect of the [judgment]" that determines what it is that has been prescribed by that judgment:

"`The allowance in the case at bar will be considered and construed in accordance with its substance and not its mere form. If, when so considered, the effect of the decree rendered was not that of a division of property, but of an allowance of alimony payable by installments for the support of the wife and children, it may be modified.'"

DuBoise v. DuBoise, 275 Ala. 220, 228, 153 So.2d 778, 785 (1963) (quoting Sullivan v. Sullivan, 215 Ala. 627, 629, 111 So. 911, 912 (1927) (emphasis added)).

The trial court also relied upon its finding that it was "the intent of the parties ... to establish alimony in gross." As to this finding, I first would note that it is the legal effect of the judgment of divorce that is at issue. The parties' agreement was merged into that judgment and thereupon lost its contractual nature. Ex parte Owens, 668 So.2d 545 (Ala.1995); see generally Bass v. Bass, 434 So.2d 280, 281 (Ala. Civ.App.1983) ("[t]he [trial] court is not bound by an agreement of the parties in contemplation of a divorce," but may accept or reject the agreement in whole or in part).

Second, it may be true that the trial court intended to effect a property division; that, however, does not mean that it succeeded in doing so. It may be that, because of error or misunderstanding as to the fundamental characteristics of alimony in gross, or for whatever reason, the divorce judgment simply creates a payment obligation that by its nature is not a division of the parties' property. If so, that obligation cannot be made into something it is not. As noted, an allowance must be "considered and construed in accordance with its substance"; what matters is whether "the effect of the decree rendered" was of an award of periodic alimony for maintenance and support or an allocation of the property of the marital estate. What must be assessed is the fundamental character of that which is created in the divorce judgment.

In LeMaistre v. Baker, 268 Ala. 295, 105 So.2d 867 (1958), a case cited in the petition before us, we find the following exposition, which begins with a quotation from Justice Somerville's opinion in Smith v. Rogers, 215 Ala. 581, 583, 112 So. 190, 192 (1927):

"`But, on principle, there is no escape from the conclusion that a decree for alimony in gross, if without reservation,³ becomes a vested right from the date of its rendition and survives the death of the husband. Differing from a mere periodic allowance for current and continuous support, it is intended to effect a final termination of the property rights and relations of the parties, and is an approximate appraisal of the present value of the wife's future support, and, in a measure, a compensation for her loss of inchoate property rights in her husband's homestead and other estate, given to her by statute in case of her survival. The decree therefore has the effect of a final judgment for the payment of money, and is as binding upon the estate of the husband as upon himself while living.'

"....

"... [I]n Borton v. Borton, 230 Ala. 630, 162 So. 529, 530, 101 A.L.R. 320 [(1935)],... Justice Bouldin, speaking for the Court, made the following pertinent concise comment:

"`In Epps v. Epps, 218 Ala. 667, 120 So. 150 [(1929)], the full court considered the nature and basis of a monthly allowance for future support of the wife. Being an allowance in lieu of the legal obligation of the husband to support the wife, payable, if need be, from the current earnings of the husband from time to time, it was decided that the court had inherent power to modify such decree in the future because of changed conditions, notwithstanding no reservation of future control was written in the decree.

"`This has become the settled law of Alabama. The rule applies notwithstanding the decree was pursuant to an agreement of the parties. Worthington v. Worthington, 224 Ala. 237, 139 So. 334 [(1932)]; Ex parte Allen, 221 Ala. 393, 128 So. 801 [(1930)].

"`....'

"....

"As stated, the trial court in the instant case ruled that the decree of divorce which he had rendered almost three years previously, in which there was the foregoing quoted provision, was in fact an award of alimony in gross and that, as such, the obligation of H. Powell Baker to pay to Emma Baker the amount as provided therein survived his death and became a charge against the estate. Although this conclusion was stated as a finding of fact, it is manifest that it was in reality an exercise of judgment on a question of law and is therefore subject to review."

LeMaistre, 268 Ala. at 296-98, 105 So.2d at 868-69 (emphasis added).

In Zinnerman v. Zinnerman, 803 So.2d 569, 574 (Ala.Civ.App.2001), the Court of Civil Appeals stated:

"`"`Alimony in gross' is the present value of the wife's inchoate marital rights — dower, homestead, quarantine, and distributive share. It is payable out of the husband's present estate as it exists at the time of divorce."' Murphy v. Murphy, 624 So.2d 620, 622 (Ala.Civ. App.1993), quoting Hager v. Hager 293 Ala. 47, 299 So.2d 743 (1974) (emphasis added [in Zinnerman])."

See also Johnson v. Johnson, 840 So.2d 909, 912 (Ala.Civ.App.2002) (confirming that alimony in gross is a form of property division and therefore by its nature must be payable out of the estate "as it exists at the time of the divorce"); Epps v. Epps, 218 Ala. 667, 668, 120 So. 150, 151 (1929) (allowance of $100 per month was considered to be periodic alimony because it would be "equivalent to her share in quite a considerable estate" and, yet, "[t]he husband had no such estate"). In addition to compensation for the wife's inchoate marital rights,

"an award in gross may also represent a division of the fruits of the marriage where liquidation of a couple's jointly owned assets is not practicable. For this very reason `alimony in gross,' which has come to represent a settlement of property rights, is often coupled with an award of periodic alimony."

Hager v. Hager, 293 Ala. 47, 54, 299 So.2d 743, 749 (1974) (emphasis added).

The payments here hardly can be considered a division of the existing property of the former husband's estate or of the marital estate. The continuation of their payment by the former husband is tied to the former husband's continuation of his employment and thus to income he has yet to earn.

In contrast, the law provides that the continuation of periodic alimony for the support and maintenance of the payee may be tied to the payor's future income. See, e.g., Sharp v. Sharp, 230 Ala. 539, 161 So. 709 (1935). Here, by tying the former husband's obligation to continue paying the alimony to his continued employment and earning a current income, the judgment did not, despite whatever intention the parties or the trial court might have had, succeed in dividing currently owned assets of the marital estate; instead, it succeeded in fashioning something that bears an essential earmark of periodic alimony.

In addition to not having the fundamental character of division of property, the payments at issue simply fail to meet the specific legal requirements that must be met to qualify as that subspecies of property division known as "alimony in gross." Time and again our decisions have affirmed that to be considered alimony in gross, an award "must meet and satisfy two requirements, i.e., (1) the time of payment and the amount must be certain; [and] (2) the right to alimony must be vested." Trammell v. Trammell, 523 So.2d 437, 439 (Ala.Civ.App.1988) (quoting Montgomery v. Montgomery, 275 Ala. 364, 366, 155 So.2d 317, 319 (1963)). In Ten-Eyck v. TenEyck, 885 So.2d 146, 151-52 (Ala.Civ.App....