O'Malley v. Pan American Bank of Orlando, N. A.

• Decision Date: 08 May 1980
• Docket Number: No. 53547,53547
• Citation: 384 So.2d 1258
• Parties: Iva C. O'MALLEY, Petitioner, v. PAN AMERICAN BANK OF ORLANDO, N. A., as Personal Representative of the estateof Joseph E. O'Malley, Respondent.
• Court: Florida Supreme Court

Page 1258

384 So.2d 1258

Iva C. O'MALLEY, Petitioner, v. PAN AMERICAN BANK OF ORLANDO, N. A., as Personal Representative of the estateof Joseph E. O'Malley, Respondent.

No. 53547.

Supreme Court of Florida.

May 8, 1980.

Rehearing Denied July 21, 1980.

G. Thomas Ball of Mesmer, Robbinson & Ball, Orlando, for petitioner.

Alexander C. Mackinnon, Lawrence G. Mathews, Jr., and Robert E. Meale of Fawsett, Smith, Mackinnon & Mathews, Orlando, for respondent.

ADKINS, Justice.

This cause is before us on petition for writ of certiorari form the Fourth District Court of Appeal on the ground that its decision, Pan American Bank of Orlando v. O'Malley, 353 So.2d 856 (Fla. 4th DCA 1977), conflicts with our decisions in Johnson v. Every, 93 So.2d 390 (Fla.1957), and First National Bank in St. Petersburg v. Ford, 283 So.2d 342 (Fla.1973). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972).

On February 3, 1972, the petitioner, Iva C. O'Malley, and James E. O'Malley were divorced. The final judgment incorporated by reference a written separation agreement of the parties which provided in pertinent part: "Husband agrees to pay unto wife as and for permanent alimony the sum of eight hundred fifty and no/100 dollars ($850.00) per month beginning March 1, 1972, and monthly thereafter until wife becomes remarried or deceased." Mr. O'Malley subsequently died, survived by petitioner, who had not remarried. Petitioner filed a claim for continued alimony payments against the estate of Mr. O'Malley. The estate denied her claim, and petitioner began the instant action.

The trial court held that the written separation agreement was sufficient to obligate Mr. O'Malley's estate to continue alimony payments after his death. This holding was based on our decision in Johnson v. Every, 93 So.2d 390 (Fla.1975), which the trial court stated it felt bound to follow. The Fourth District Court of Appeal reversed the trial court's decision stating that Johnson had in effect, though not expressly, been overruled, or alternatively that Johnson had little precedential value and its holding was limited to its facts.

Initially, it must be established whether the periodic payments provided for in the separation agreement are, in substance, alimony or an integral part of the property settlement rights of the parties. Both of the courts below found these payments to be alimony. We agree. The periodic payments were designed to provide support and maintenance for petitioner. They were not tied to any property rights, and they were set-up to terminate upon the remarriage of petitioner. Furthermore, this is clearly periodic alimony as opposed to lump sum alimony payable in installments. The latter would have to be considered to be a vested property interest. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Having found the periodic payments provided for in the agreement were alimony, the question remains as to whether the language of the agreement is sufficient to obligate the estate of Mr. O'Malley to continue to pay the alimony.

Alimony was originally established in Florida as a corollary to the common law obligation of a husband to provide his wife with the day-to-day necessities of life. At common law, this support obligation terminated upon the death of the husband. Aldrich v. Aldrich, 163 So.2d 276 (Fla.1964). Consequently, the well established rule is that an obligation to pay alimony ceases upon the death of the obligor, unless that person expressly agrees that the estate shall be bound to...