Holleman v. Holleman, No. 57506

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtZUCCARO; ROY NOBLE LEE; ROBERTSON; ROBERTSON
PartiesJesse Boyce HOLLEMAN v. Elizabeth Carey Sullivan HOLLEMAN.
Docket NumberNo. 57506
Decision Date18 May 1988

Page 90

527 So.2d 90
Jesse Boyce HOLLEMAN
v.
Elizabeth Carey Sullivan HOLLEMAN.
No. 57506.
Supreme Court of Mississippi.
May 18, 1988.

Page 91

Joseph R. Meadows, Gulfport, for appellant.

Frank D. Montague, Jr., Gray, Montague & Pittman, Hattiesburg, for appellee.

En Banc.

ZUCCARO, Justice, for the Court.

This is an appeal from a judgment of the Chancery Court of Harrison County dated September 13, 1985 granting a divorce to the appellee from the appellant and making provisions for child custody and support, alimony, health care and an equitable division of property. From said judgment, Jesse Boyce Holleman appeals, alleging six (6) assignments of error.

FACTS

On November 1, 1970, appellant and appellee were married and from said marriage one child, Elizabeth Ruth Holleman was born on April 9, 1973. The parties continued to live together as husband and wife until March 21, 1984, at which time they were separated.

May 18, 1984, Mrs. Holleman filed her complaint for divorce alleging as grounds habitual cruel and inhuman treatment. After a lengthy trial, the lower court granted a divorce to Mrs. Holleman on the grounds of habitual cruel and inhuman treatment. No appeal is made on the granting of the divorce. In its judgment rendered on September 13, 1985, the lower court made provision for the custody and support of Elizabeth Ruth Holleman, alimony and health care for appellee, an equitable division of the marital property as well as attorney's fees for Mrs. Holleman. On appeal the appellant challenges six (6) provisions of the lower court's judgment which we examine here.

I. DID THE LOWER COURT ERR IN RULING THAT APPELLANT'S OBLIGATION TO PROVIDE APPELLEE ALL NECESSARY DENTAL EXPENSES AND BACK TREATMENT FOR THE YEARS 1985, 1986, AND 1987, AND APPELLANT'S OBLIGATION TO PAY APPELLEE PERIODIC ALIMONY WOULD CONSTITUTE AN OBLIGATION OF APPELLANT'S ESTATE?

Paragraph 10 of the Judgment provides:

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Defendant shall pay unto Plaintiff the sum of $2,500.00 per month by way of 'periodic alimony' for a period of ten (10) years and shall be responsible for all necessary dental expenses and back treatment which Plaintiff may incur during the years 1985, 1986 and 1987.

In paragraph 19, the lower court again dealt with the duration of certain payments, including alimony, by specifically providing:

... the obligations of child support, hospital, dental and optical care, back treatment, life insurance, alimony, debt indemnity, housing provision, maintenance and repair imposed upon Defendant by this Judgment shall constitute obligations of his Estate in the event of his demise or disability ... . (emphasis added)

The lower court in effect, made the payment of $2,500 per month periodic alimony a debt of Mr. Holleman's estate in the event he should die.

It is well settled in this State that periodic or permanent alimony terminates upon the death of a husband or upon the remarriage of the wife. East v. East, 493 So.2d 927, 931 (Miss.1986). It would be said now, on the death of either party or remarriage of the party receiving alimony. On the other hand, lump sum alimony becomes vested in the party to whom it is awarded, and it does not terminate upon remarriage or death. It may be paid in installments. In East, supra, this Court stated that it is "doubtful" if any court has the power to make periodic alimony continue beyond the death of the husband. East at 931.

In the present case, both parties recognize the $2,500 per month payments as being periodic alimony and appellee argues that periodic alimony should be treated in a similar manner as lump sum alimony so that it would become a vested interest and debt of the husband's estate. The present law in this State does not allow this to occur. East at 931. The lower court erred when it made the payment of periodic alimony a debt of Mr. Holleman's estate at his death. Also it is noted that there was a ten (10) year limitation on the "periodic alimony". A fixed and certain sum of money which is due and payable over a definite period of time is clearly alimony in gross, or lump sum alimony, Wray v. Wray, 394 So.2d 1341, 1345 (Miss.1981), and not periodic alimony. Mrs. Holleman failed to cross-appeal on this point and we do not have the issue before us. Accordingly, we hold that the lower court erred when it made the payment of periodic alimony a debt of Mr. Holleman's estate at his death should it occur within the "ten year" period and the judgment is reversed and rendered as to this point.

II. DID THE LOWER COURT ERR IN PLACING A SPECIAL LIEN AGAINST APPELLANT'S HOMESTEAD TO SECURE PAYMENT OF ALL SUMS ORDERED UNDER THE JUDGMENT OF DIVORCE?

Paragraph 13 of the lower court's judgment provides that

A special lien is hereby placed against Defendant's homestead at # 5 Mockingbird Lane, Gulfport, First Judicial District, Harrison County, Mississippi to insure payment of all sums ordered to be paid by this Final Judgment ....

A plain reading of paragraph 13 shows that the chancellor intended to secure payment of the judgment by placing a lien on Mr. Holleman's homestead.

The record reveals that in her complaint for divorce, Mrs. Holleman failed to plead or ask for a lien to secure payment of the judgment. Further, there was no hearing on the matter until after the lower court had rendered its findings of fact and Mr. Holleman filed a motion to reconsider several of the court's findings, including the lien placed on his property. Mr. Holleman now argues that due to the fact that Mrs. Holleman's complaint did not specifically ask for a lien, he did not have adequate notice so as to prepare a proper defense to that point. Appellee admits that the lien was not plead, but argues that since alimony was specifically requested, and since she made a general prayer for any other

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equitable relief, that the possibility of the imposition of a lien was adequately noticed.

Under the general prayer, any relief will be granted which the original bill justifies and which is established by the main facts of the case, so long as the relief granted "will not cause surprise or prejudice to the defendant." V.A. Griffith, Mississippi Chancery Practice Sec. 186 (1950). Further, in regard to the imposition of a lien to secure payment of alimony, child support, etc., it has been stated that no such lien should be given or declared unless specifically asked for, so that the husband may have an opportunity to make a defense. J.W. Bunkley, Divorce and Separation in Mississippi Sec. 6.09 (1957). While the lower court did have the power in its discretion to impose a lien upon Mr. Holleman's property to secure the award, Buckalew v. Stewart, 229 So.2d 559 (Miss.1969), Mr. Holleman should have been provided notice that this might occur. The only consideration given to this matter occurred in a hearing conducted after trial on Mr. Holleman's motion to reconsider. We hold under these facts, Mr. Holleman was "surprised" by the imposition of a lien not specifically plead; further he had inadequate time and little...

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44 practice notes
  • Retzer v. Retzer, No. 89-CA-0589
    • United States
    • United States State Supreme Court of Mississippi
    • December 12, 1990
    ...More important, the reasoning reflects an accurate assessment and application of relevant, still-valid law. See also Holleman v. Holleman 527 So.2d 90, 94 (Miss.1988) (holding that chancellors are accorded broad discretion due to their "peculiar opportunity to sense the equities of the situ......
  • Brooks v. Brooks, No. 92-CA-01197-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 30, 1995
    ...particular situation. Tilley v. Tilley, 610 So.2d 348 (Miss.1992); Cherry v. Cherry, 593 So.2d 13, 19 (Miss.1991); Holleman v. Holleman, 527 So.2d 90 With regard to a division of property, this Court has recognized that the chancery courts of Mississippi have the authority to order an equit......
  • Queen v. Queen, No. 58701
    • United States
    • United States State Supreme Court of Mississippi
    • August 2, 1989
    ...requested in the pleadings deprives the spouse against whom the award is assessed of due process of law. See also Holleman v. Holleman, 527 So.2d 90 (Miss.1988) (holding that it was error for the chancellor to impose a special lien on Mr. Holleman's homestead to secure payment of monies awa......
  • Tilley v. Tilley, No. 91-CA-467
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1992
    ...of the chancery court because of "its peculiar opportunity to sense the equities of the situation before it." Holleman v. Holleman, 527 So.2d 90, 94 (Miss.1988) (citing Wood v. Wood, 495 So.2d 503 In a proper case, the chancellor can award alimony payable in one lump sum or periodic alimony......
  • Request a trial to view additional results
44 cases
  • Retzer v. Retzer, No. 89-CA-0589
    • United States
    • United States State Supreme Court of Mississippi
    • December 12, 1990
    ...More important, the reasoning reflects an accurate assessment and application of relevant, still-valid law. See also Holleman v. Holleman 527 So.2d 90, 94 (Miss.1988) (holding that chancellors are accorded broad discretion due to their "peculiar opportunity to sense the equities of the situ......
  • Brooks v. Brooks, No. 92-CA-01197-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 30, 1995
    ...particular situation. Tilley v. Tilley, 610 So.2d 348 (Miss.1992); Cherry v. Cherry, 593 So.2d 13, 19 (Miss.1991); Holleman v. Holleman, 527 So.2d 90 With regard to a division of property, this Court has recognized that the chancery courts of Mississippi have the authority to order an equit......
  • Queen v. Queen, No. 58701
    • United States
    • United States State Supreme Court of Mississippi
    • August 2, 1989
    ...requested in the pleadings deprives the spouse against whom the award is assessed of due process of law. See also Holleman v. Holleman, 527 So.2d 90 (Miss.1988) (holding that it was error for the chancellor to impose a special lien on Mr. Holleman's homestead to secure payment of monies awa......
  • Tilley v. Tilley, No. 91-CA-467
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1992
    ...of the chancery court because of "its peculiar opportunity to sense the equities of the situation before it." Holleman v. Holleman, 527 So.2d 90, 94 (Miss.1988) (citing Wood v. Wood, 495 So.2d 503 In a proper case, the chancellor can award alimony payable in one lump sum or periodic alimony......
  • Request a trial to view additional results

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