Fanning v. Fanning

• Decision Date: 06 December 1996
• Citation: 686 So.2d 333
• Parties: Jesse C. FANNING v. Viola P. FANNING. Viola P. FANNING v. Jesse C. FANNING. 2950854.
• Court: Alabama Court of Civil Appeals

Page 333

686 So.2d 333

Jesse C. FANNING v. Viola P. FANNING.

Viola P. FANNING v. Jesse C. FANNING.

2950854.

Court of Civil Appeals of Alabama.

Dec. 6, 1996.

Douglas C. Martinson II, of Martinson & Beason, P.C., Huntsville, for Jesse C. Fanning.

Barbara C. Miller, Huntsville, for Viola P. Fanning.

L. CHARLES WRIGHT, Retired Appellate Judge.

Following a forty-two-year marriage, the parties were divorced by the Circuit Court of Madison County. The husband appeals and the wife cross appeals. The parties assert, for different reasons, that the trial court erred in its award of alimony in gross.

The provision of the final judgment, pertaining to alimony in gross, is as follows:

"Normally in a marriage of this duration, the Court would order the husband to pay periodic alimony to the wife in the amount of $1,147.00 a month, or $13,764.00 a year. However, the wife now is seventy-three years old (date of birth: July 12, 1922) and the husband now is eighty-two years old (date of birth: November 7, 1913). Given the husband's advanced age, it is entirely likely that he will predecease the wife, and that she will be left without any periodic alimony support during the winter of her life--and, given the equities of this marriage, that would be patently unfair to this woman. Consequently, this Court will award her alimony in gross in the amount of $169,022.00."

The trial court explained that the periodic alimony figure of $1,147 per month or $13,764 per year "was derived from computing the parties' respective monthly gross income, counting the wife as two dependents, and using the formula established in Rule 32, Alabama Rules of Judicial Administration [Child Support Guidelines]." The trial court then determined that the wife had a life expectancy of 12.28 years. It multiplied the annual amount of periodic alimony by the wife's life expectancy and arrived at the award of alimony in gross in the amount of $169,022.

Both parties complain that the trial court erred in its award of alimony in gross. The husband asserts that the trial court incorrectly "awarded periodic alimony under the guise of alimony in gross." He contends that the trial court failed to consider the condition of his present estate. The wife asserts that the trial court erred in considering only periodic support in determining its award of alimony in gross. She insists that the trial court should have considered all the property rights of the parties.

The distinction between alimony in gross and periodic alimony has been discussed by this court in many cases. Lacey v. Ward, 634 So.2d 1013 (Ala.Civ.App.1994). The bellwether case of definition must be the supreme court case of Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). In short, that case defined alimony in gross as the present value of the wife's inchoate rights in the marital estate, dower, homestead, and distributive share. It is payable out of the husband's estate as it exists at the time of the divorce. Lacey....