Hager v. Hager

• Decision Date: 08 August 1974
• Parties: In re Herbert HAGER v. Clotyle S. HAGER (Stead). Ex parte Clotyle S. Hager (Stead). SC 809.
• Court: Alabama Supreme Court

Page 743

299 So.2d 743

293 Ala. 47

In re Herbert HAGER v. Clotyle S. HAGER (Stead) Ex parte Clotyle S. Hager (Stead).

SC 809.

Supreme Court of Alabama.

Aug. 8, 1974.

Corretti, Newsom & Rogers, Birmingham, for petitioner.

Ernest W. Weir and Erskine R. Lindsey, Birmingham, for respondent.

BLOODWORTH, Justice.

We granted the petition of Clotyle S. Hager (Stead) for certiorari to the Court of Civil Appeals to review the judgment and decision of that court in Hager v. Hager (Stead), 53 Ala.App. 306, 299 So.2d 740.

Petitioner (wife) and respondent (husband) were divorced April 23, 1970. They reached a property settlement agreement prior to the decree which was incorporated therein.

The final decree of divorce provides:

'1. Respondent (husband) agrees to pay to the Complainant (wife) the sum of Sixty-Nine Thousand and no/100 ($69,000.00) Dollars as Alimony in gross. Said sum shall be payable at the rate of Two Hundred Fifty and no/100 ($250.00) Dollars per month the first payment to commence on the first day of the month after the date of this agreement. It is understood that in the event of the death of Complainant (wife) The obligation as set out herein shall no longer be binding on the Respondent (husband) And he shall not be liable to pay said sum or sums to any other person, including heirs and assigns of the Complainant (wife.)

'2. Respondent (husband) further agrees to pay to the Complainant (wife) the sum of Two Hundred Fifty and no/100 ($250.00) Dollars per month as Alimony. Alimony as set out herein in this paragraph shall terminate on the death or remarriage of the Complainant (wife) or upon Respondent's (husband) death.' (Emphasis and explanation supplied.)

On August 10, 1973, respondent herein filed a petition in the Circuit Court of Jefferson County seeking to modify the terms of the final decree of divorce. He alleged that there had been a change in circumstances in that petitioner herein had remarried and his financial condition had deteriorated.

Petitioner herein then filed a motion to dismiss the respondent's petition on the grounds that the payments provided for in Paragraph 1 of the agreement constituted 'alimony in gross' and thereby created a vested right and interest in her. The Honorable William H. Cole of the Circuit Court of Jefferson County granted the petitioner's motion. No testimony was taken.

Respondent then appealed to the Court of Civil Appeals. The Court of Civil Appeals reversed, holding that 'the limiting provision (of Paragraph 1), i.e., cessation upon the wife's death, to this court, prevents the award from 'vesting' as is required' in order to qualify as alimony in gross and thereby be free from modification. The court further held that, under Welch v. Welch, 49 Ala.App. 647, 275 So.2d 162 (1973), no award of 'alimony in gross' and 'periodic alimony' can be made in the same decree.

We hold that the award in Paragraph 1 is 'alimony in gross,' is not subject to modification, and that the rule in Welch is not applicable to the case at bar. Accordingly, we reverse the judgment and decision of the Court of Civil Appeals, being of the opinion and judgment that the decree of the trial court which dismissed the husband's petition to modify should be affirmed.

I.

Paragraph 1 provides for a lump-sum award of $69,000.00. This award is clearly denominated 'alimony in gross.' However, confusion exists in our cases as to the true meaning of this term and the rights and liabilities which it connotes. Although the wording of our present alimony statute ¹ is virtually the same as that which appeared in the Code of 1852 and in each succeeding code, our alimony law has undergone a substantial metamorphosis through judicial construction. Therefore, a brief history is in order.

By the law of England, before the year 1858, no divorce except from bed and board was permitted, unless the marriage was void ab initio. There was no such thing as alimony upon an absolute dissolution of marriage, but a wife was restored to possession of her property because the marriage was void. Hence, any allowance to the wife from the husband after an absolute divorce is dependent upon our statute. Smith v. Smith, 45 Ala. 264 (1871).

The forerunner ² of our present statute was construed in Smith v. Smith, supra. The initial decree of divorce in that case provided Only for periodic payments of $100 per annum. No total figure was decreed. Subsequently, the husband sought relief from the award on the ground of changed circumstances. The trial court granted the relief. This Court reversed. In dismissing the husband's petition, the Court held, at pages 268, 269 of 45 Ala., as follows:

'This 'allowance' to the wife is not, in fact, alimony, in the sense of the ecclesiastical law of England; but it is more strictly an arrangement in lieu of a division of the estate of the parties, so as to return to the wife her just portion of that property which mutually belonged to both during the marriage, and which the labor and care of both may have equally contributed to procure and preserve. This allowance was intended to supply the wife with the means of commencing life anew, after her expulsion from the household of the husband, and the withdrawal of his liability for her maintenance and support, and to place her above actual destitution. Such purpose could best be accomplished by making such allowance absolute and permanent. And in accordance with this purpose has been the construction of a similar statute, which has been superseded by the law above quoted. (Citations omitted.) I therefore think that the legislature intended that the 'allowance' directed to be made to the wife upon a divorce dissolving the bonds of marriage, should pass to her in absolute right as a permanent provision for her support.

'The form and manner of granting the allowance in this case cannot now be inquired into or altered. Its correctness has been affirmed on appeal to this court. (Citations omitted.) That the allowance was a sum certain, to be paid from year to year, does not change the character of the decree. This, in a decree for divorce from bed and board, is such a decree as may be subsequently modified. (Citation omitted.) But this is not such a case. Here the divorce was from the bonds of matrimony, and there can be no restoration of the conjugal relation between the parties, except by a second marriage. The reasons, then, which apply in justification of an alteration of the amount of alimony, on a divorce from bed and board, do not apply here. Most clearly the allowance in such a case as this could not be increased on the increase of the facilities of the husband; because, the first allowance is the only one authorized by the statute, and that, when once made, must necessarily be final. (Citations omitted.) Then, as the allowance cannot be increased, for the same reason it ought not to be diminished. And the ecclesiastical rule in case of a divorce from bed and board does not apply.'

Thus, under the statute, it was held that all decrees for permanent 'alimony' incident to an absolute divorce were not modifiable, whether the award was merely periodic or in gross, because the determination of the amount the husband should pay was based on the Present value of his estate and not his Future earning capacity. Furthermore, the chancery court lost jurisdiction after the adjournment of court for the term. See Gabbert v. Gabbert, 217 Ala. 599, 117 So. 214 (1928) (overruled on another issue in Epps v. Epps, 218 Ala. 667, 120 So. 150 (1929)), construing Smith v. Smith, supra.

In cases decided both before and after Smith, it was recognized that the statute allowed not only a periodic award but also an allowance in gross. An allowance in gross could be payable in one lump sum or in installments and could be combined with purely periodic payments. King v. King, 28 Ala. 315 (1856); Jeter v. Jeter, 36 Ala. 391 (1860); Smith v. Rogers, 215 Ala. 581, 112 So. 190 (1927).

An award in gross was held to be unmodifiable, not because it was made in lump sum, but because it was based on the value of the wife's interest in the husband's estate at the time of the divorce and because all such decrees were unmodifiable. Smith v. Rogers, supra.

However, in construing the temporary alimony statute in Ex parte Whitehead, 179 Ala. 652, 60 So. 924 (1913), this Court recognized the inequity of a rule that founded alimony solely on the value of the husband's estate. A deserving wife could be deprived of support if the husband had no estate even though he had a future earning capacity sufficient to provide for her. In Whitehead, Justice Sayre, writing for the Court, said that the husband's future earning capacity was a proper factor to be considered in making an award of temporary alimony. In so doing, he cited authority from other jurisdictions which applied this rule to an award of permanent alimony following an absolute divorce.

In Jones v. Jones, 131 Ala. 443, 31 So. 91 (1901), this Court held that a court of equity could retain jurisdiction following an absolute divorce, if the decree so provided in express terms. In subsequent cases it appears that these two rules became merged into our existing case law as to permanent alimony. See, e.g. Ortman v. Ortman, 203 Ala. 167, 82 So. 417 (1919).

Thus, on rendering a final decree for divorce, the trial court could satisfy a wife's inchoate rights in her husband's estate (dower, homestead, etc.) and provide for her future maintenance and support, considering the value of the husband's estate with regard to the former, and the husband's future earning capacity with regard to the latter. That part of the award terminating the wife's inchoate property rights could be made in gross, payable presently or in installments, as directed; that part of the award allocable to future support could be made in a lump sum or in periodic payments; the decree could use a combination of both methods. If the decree was...