Hereford's Estate, In re

• Decision Date: 19 December 1978
• Docket Number: No. 14258,14258
• Citation: 162 W.Va. 477,250 S.E.2d 45
• Court: West Virginia Supreme Court
• Parties: In re ESTATE of Frank Morton HEREFORD.

Page 45

250 S.E.2d 45

162 W.Va. 477

In re ESTATE of Frank Morton HEREFORD.

No. 14258.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1978.

Syllabus by the Court

1. Where a property settlement agreement provided for a payment of alimony to a former wife "for her maintenance and support, which shall continue so long as said Quinta Beall Couch Hereford is living and has not remarried," and the subsequent court divorce decree provided that "Frank M. Hereford do pay unto the plaintiff, Quinta Beall Couch Hereford, (a certain sum) so long as she lives or until she remarries . . .," the trial court acted properly in holding that alimony could be a charge against the deceased former husband's estate where the present value of the former wife's entitlement to alimony during her natural life was not speculative, there were extenuating equitable considerations militating in favor of continuing alimony after the death of the former husband, and no undue hardship was created to other dependents.

2. 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 entitles a court of equity to modify any alimony award to reflect changed circumstances.

3. In all domestic relations cases where the final order is entered after 1 February 1979 wherever the court provides for a periodic payment (alimony) to a party either by reference to a property settlement agreement in the divorce decree itself or by incorporation of the property settlement agreement into the decree, regardless of whether the words "ratified," "approved," "confirmed," or "merged" are used, it shall be presumed that such award of periodic payments is judicially decreed alimony or alimony and child support, and unless there are specific words in the property settlement agreement or divorce decree to the contrary, any award of periodic payments shall be governed by the law of alimony and child support and not by contract law.

4. In all domestic relations cases where the final order is entered after 1 February 1979, if at the time of entry of the final order, the court finds the terms of a property settlement agreement fair and reasonable, such property settlement agreement may specifically provide that periodic payments (alimony) shall never be changed by the circuit court; that the remedy for failure to make such periodic payments shall be by contract action and not by contempt; that the periodic payments shall be enforceable by contempt if the payor is able to pay, but that the court shall not have power to increase or decrease the award; that no periodic payments shall ever be paid, but that a lump sum settlement in lieu of such payments shall constitute a final settlement of the rights of the parties; or, any other terms acceptable to the court to which the parties may agree. However, in order to have a periodic payment treated as anything but alimony or alimony and child support, the parties must express themselves in clear, unambiguous language in the property settlement agreement and the agreement must be confirmed by the court in some obvious way.

5. In all domestic relations cases where the final order is entered after 1 February 1979 there shall be no special legal effect in the divorce decree attached to the words "merged," "ratified," "confirmed," "approved," "incorporated," etc., and where the parties and the court wish to do something other than award judicially decreed periodic payments for alimony or alimony and child support enforceable by contempt and subject to modification by the court, the parties must expressly set forth the different terms to which they agree and the court must expressly indicate his approval of their agreement.

6. Child support is always subject to continuing judicial modification.

Bowles, McDavid, Graff & Love, Gary G. Markham and Gerard R. Stowers, Charleston, for Maxine W. Hereford.

Love, Wise, Robinson & Woodroe, W. M. Woodroe and S. Clark Woodroe, Charleston, for Quinta Beall Couch Hereford.

NEELY, Justice:

We granted this appeal to reexamine the law concerning property settlement agreements and alimony decrees which up to this time has been far from clear. In the case before us the Circuit Court of Kanawha County upheld the claim of Quinta Beall Couch Hereford, appellee, for alimony against the estate of her ex-husband, Frank Morton Hereford. Appellant, Maxine W. Hereford, executrix of the estate of Frank Morton Hereford, contends that the property settlement agreement between appellee and the deceased was merged into the alimony decree entered upon their divorce, and that, since the decree did not specifically provide for the continuance of alimony payments beyond the death of the payor, the right to alimony ceased at Frank Morton Hereford's death. The lower court found that regardless of whether the agreement merged into the decree, the language used in both the settlement agreement and decree clearly provided for alimony beyond the death of the payor. After examining the equitable considerations in this case we agree with the lower court and affirm its holding.

Quinta Beall Couch Hereford, appellee, and Frank Morton Hereford, deceased, were divorced on June 12, 1957. Before their divorce, they entered into an agreement on February 1, 1957 which provided, in part:

Frank M. Hereford agrees and promises to pay unto Quinta Beall Couch Hereford, on the first day of each and every month beginning on the date hereof, the sum of two hundred fifty dollars ($250.00) as alimony for her maintenance and support, which monthly payments shall continue so long as said Quinta Beall Couch Hereford is living and has not remarried; upon the remarriage of said Quinta Beall Couch Hereford, or in the event of the death of Quinta Beall Couch Hereford, then and in either of which events, said monthly alimony payments shall cease and terminate. The amounts herein provided to be paid may be set forth in any decree granting a divorce between the parties as the amount of alimony payable by the party of the second part to the party of the first part.

The subsequent divorce decree provided, in part:

It is further ORDERED and DECREED that defendant, Frank M. Hereford, do pay unto the plaintiff, Quinta Beall Couch Hereford, until the further order of this court, the monthly sum of $250.00 as alimony to said plaintiff, so long as she lives or until she remarries . . .

And, it appearing to the court that plaintiff and defendant have entered into a property settlement agreement, in writing, bearing date the 1st day of February, 1957, a copy of which was introduced in evidence, and that said agreement is in all respects fair and equitable, it is, therefore, accordingly ADJUDGED, ORDERED and DECREED that said agreement be and the same is hereby ratified, approved and confirmed, insofar as same is not in conflict with the provisions of this DECREE.

Frank M. Hereford died November 8, 1975 and no further monthly payments were made to appellee. Appellee filed a claim against his estate for continued payments with Eugene R. Hoyer, Commissioner of Accounts for Kanawha County and the claim was contested by the appellant executrix. The Commissioner of Accounts' final report submitted to the County Commission of Kanawha County allowed appellee's claim and the appellant filed exceptions. By order dated August 2, 1977, the County Commission approved the report. Appellant appealed to the Circuit Court of Kanawha County, executed bond, and placed certain assets of the estate in escrow to secure appellee's claim. By order dated April 28, 1978, the lower court upheld appellee's claim stating:

The language of said agreement provides that Frank M. Hereford shall pay unto the said Quinta Beall Couch Hereford the sum of $250.00 a month as alimony, "which monthly payment shall continue so long as said Quinta Beall Couch Hereford is living"; and the language of said decree of the Domestic Relations Court of Kanawha County, West Virginia, orders that said Frank M. Hereford do pay unto the plaintiff Quinta Beall Couch Hereford the monthly sum of $250.00 as alimony to said plaintiff "so long as she lives (or until she remarries)"; and both contain language expressly providing for alimony beyond the death of Frank M. Hereford; and said decree constitutes a valid judgment binding the said Frank M Hereford so long as he lived and binding his estate after the death of said Frank M. Hereford, to pay $250.00 each month to Qunita Beall Couch Hereford so long as she lives or until she remarries.

The equitable considerations in this case have a significant bearing on the result. Our law is replete with interesting rules which can be manipulated in such a way as to permit a court to arrive at any desired result in a case of this nature. We suspect that previous cases have manipulated these rules in such a way as to arrive at equitable results in those cases; however, the effect of that manipulation process has been untoward with regard to the degree of certainty with which our law can be predicted. Consequently, we wish to point out that the facts of the case before us have a significant impact on the result, and as domestic relations are governed by the traditions of equity, the pathetic facts before us are a perfectly proper consideration for both the lower court and ourselves. It is uncontested that Frank M. Hereford made all payments during his life and that appellee is now 71 years old, in ill health, and a resident of the Mountain State Nursing Home where she seems destined to die. Her prognosis indicates that she will never be able to work again and is unable to care for herself.

I

A great deal of incomprehensible domestic relations law in the State of West Virginia hinges upon the...