Hartsfield v. Hartsfield
| Decision Date | 26 March 1980 |
| Citation | 384 So.2d 1097 |
| Parties | Wallace R. HARTSFIELD, Jr. v. Susan I. HARTSFIELD. Civ. 2040. |
| Court | Alabama Court of Civil Appeals |
Roderick Beddow, Jr., of Beddow, Fullan & Vowell, Birmingham, for appellant.
E. Ray Large, of Large & Donovan, Birmingham, for appellee.
The Circuit Court of Jefferson County determined that certain aspects of a divorce decree were part of a property settlement and that payments thereon constituted alimony in gross. As a result, the husband was ordered to reimburse the wife for payments she had made upon his ceasing to do so. The husband was also ordered to make all future payments.
The husband appeals and we affirm.
The dispositive issue is whether the pertinent terms of the decree were properly characterized as an award of alimony in gross and/or property settlement thereby constituting a continuing, nonmodifiable obligation of the husband after the wife's remarriage.
The record reveals the parties were divorced in 1969. The decree of divorce incorporated an agreement of the parties which in pertinent part provided:
5. The respondent (husband) will assign, deliver and make the regular premium payment for the following listed insurance policies in the sum of $85,000, making the complainant (wife) the absolute owner thereof: . . .
There followed a list of the eight insurance policies which are the subject matter of this appeal. The decree further provided:
7. The respondent is to pay to the complainant as alimony and support and maintenance for her and the said minor children the sum of One Thousand Thirty-five and no/100 ($1,035.00) Dollars per month until the complainant remarries or her death, whichever shall first occur.
Upon the wife's remarriage, the husband ceased making the premium payments on the policies awarded the wife. The wife then filed a petition for rule nisi and, after an ore tenus hearing, the learned trial judge made the determination that the award of the policies was part of the property settlement of the parties and the requirement that the husband make the regular premium payments constituted a fixed award, of alimony in gross which was not subject to modification due to the wife's remarriage.
On appeal, the husband contests this characterization. He argues that this award amounted to periodic alimony, and that his obligations thereon were terminated pursuant to § 30-2-55, Code of Ala.1975 (1979 Cum.Supp.), which states:
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 . . . . (Emphasis supplied.)
This court has previously ruled that this section of the Code applies only to awards of periodic alimony, and that it does not affect awards of alimony in gross. Higginbotham v. Higginbotham, Ala.Civ.App., 367 So.2d 972 (1979). We thus follow the well established law in Alabama that awards of alimony in gross, like property settlements, are nonmodifiable because based not on the future earning capacity of the husband, but upon the present value of his estate, not being intended to provide for the wife's future support, but to compensate her for the loss of the present value of her inchoate marital rights. See, Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974).
Turning to the disputed paragraph 5 of the decree, we note that in Higginbotham, supra, this court upheld a finding by the trial court that a provision very much like the one at bar constituted a property settlement and/or alimony in gross. There, the paragraph read:
6. The Second Party agrees that he shall make the First Party be irrevocable beneficiary of one-half of the life insurance in effect on his life and shall continue to pay the premiums thereon as the same become due and payable. 367 So.2d at 973.
The husband, through able and distinguished counsel, does not attempt to distinguish the two provisions. His contention is that this court incorrectly decided Higginbotham. Accordingly, we are urged not to repeat our purported error in the case at bar.
As support for his argument, the husband refers us to the case of Montgomery v. Montgomery, 275 Ala. 364, 366, 155 So.2d 317, 319 (1963), where the Supreme Court of Alabama said:
(F)or alimony to be in gross it should be unequivocally expressed in the decree and it must meet and satisfy two requirements, i. e., (1) the time of payment and the amount must be certain; (2) the right to alimony must be vested. (Emphasis supplied).
From this language the husband concludes this court erred in Higginbotham where we ruled the specific designation of the award as alimony in gross is not mandatory.
We cannot agree. While such a designation would of course be helpful as providing an indicium of the intent of the drafting party, we will not allow the mere lack of such a label to defeat a provision which in substance provides for an award of alimony in gross as part of a property settlement.
We reiterate, Montgomery, supra, clearly does not require such an elevation of form over substance. It merely...
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...divorce decree. See Black's Law Dictionary, Fourth Edition. As stated by the Court of Civil Appeals of Alabama in Hartsfield v. Hartsfield, Ala.Civ.App., 384 So.2d 1097, 1099 (4, 5), the substance prevails over form requiring a factual analysis in order to characterize the sum as alimony ra......
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