Holleman v. Holleman

• Decision Date: 18 May 1988
• Docket Number: No. 57506,57506
• Citation: 527 So.2d 90
• Parties: Jesse Boyce HOLLEMAN v. Elizabeth Carey Sullivan HOLLEMAN.
• Court: Mississippi Supreme Court

Page 90

527 So.2d 90

Jesse Boyce HOLLEMAN v. Elizabeth Carey Sullivan HOLLEMAN.

No. 57506.

Supreme Court of Mississippi.

May 18, 1988.

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 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 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 opportunity to present a defense. This is especially so when it is considered that extensive pre-trial discovery was carried on. The lower court erred in impressing a lien against the homestead of the appellant and the lower court's judgment is reversed and rendered there as to.

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

III. DID THE LOWER COURT ERR IN RULING THAT APPELLANT HAD THE OPTION OF MAKING THE FORMER MARITAL HOME AVAILABLE TO APPELLEE FOR HER USE AND OCCUPANCY OR APPELLEE WOULD HAVE THE OPTION OF SELECTING ANOTHER REASONABLE HOME FOR HER USE AND OCCUPANCY AS LUMP SUM ALIMONY?

In the trial below, the chancellor made provision for living accommodations for Mrs. Holleman and her daughter by ordering in paragraph 14 of its judgment that:

14. Defendant shall have the option of making the former marital dwelling on Mockingbird Lane available to Plaintiff for her use and occupancy, or, in the alternative, if Defendant does not so furnish, Plaintiff shall have the option of selecting another reasonable location of her choice for her use and occupancy. Such dwelling shall be in the Gulfport, Bay St. Louis, Pass Christian area of the Mississippi Gulf Coast and shall be commensurate with the standard of living to which Plaintiff and Beth had become accustomed prior to the parties separation. Defendant shall provide major repairs and major maintenance of such dwelling as necessary. This dwelling shall be provided until such time as Plaintiff remarries, dies or otherwise becomes not entitled thereto under applicable law and further order of the Court, as lump sum alimony. (emphasis added)

The appellant argues that a dwelling in which to live and more specifically lump sum alimony were not asked for by Mrs. Holleman in her complaint and as such should not be granted because appellant was not apprised that such a matter would even be considered by the lower court. Better pleading practice would have been for Mrs. Holleman to have asked for permanent alimony as well as lump sum alimony but that point becomes moot when an examination of paragraph 14 makes it plain that, in spite of the fact that the lower court called the award in paragraph 14 "lump sum alimony", it was "periodic alimony". For instance, the last sentence provides "This dwelling shall be provided until such time as plaintiff 'remarries, ' 'dies ' or 'otherwise ' becomes not entitled thereto under applicable law and 'further order of the court, ' as lump sum alimony." (emphasis and quotation added) The lower court actually described periodic alimony and then erroneously called it "lump sum alimony". It was within the prayer for relief of permanent alimony and child support.

While the appellant did not assign as error the vague description of the house

and land which appellant should furnish to the appellee, we remand to the lower court for adjudication the question of shelter to be provided by appellant to appellee in the event that appellant shall not have chosen to furnish to the...