Pressnell v. Pressnell

• Decision Date: 02 December 1987
• Citation: 519 So.2d 536
• Parties: Randy Leland PRESSNELL v. Donna PRESSNELL and Inscho Building Associates, Inc. Civ. 6131.
• Court: Alabama Court of Civil Appeals

Page 536

519 So.2d 536

Randy Leland PRESSNELL v. Donna PRESSNELL and Inscho Building Associates, Inc.

Civ. 6131.

Court of Civil Appeals of Alabama.

Dec. 2, 1987.

J. Witty Allen of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellant.

Ralph E. Slate, Decatur, for appellee.

HOLMES, Judge.

The dispositive issue in this appeal is whether "alimony in gross" is dischargeable in bankruptcy.

The trial court held that such "alimony" was not dischargeable and entered an order garnishing the husband's wages for the amount in question. The husband appeals and we reverse.

The facts necessary to our determination are as follows:

In the decree of divorce, the trial court incorporated by reference a "Separation Agreement" of the parties which included the following provision:

"5. Husband hereby agrees to pay to Wife as alimony in gross the sum of $10,000.00, said sum being due and payable on or before the expiration of five (5) years from the execution of this Separation Agreement. Said sum shall not bear interest until it becomes due and payable as aforesaid." (Emphasis supplied.)

Some five years after the entry of the divorce decree, a federal bankruptcy court entered an order granting the husband a discharge in bankruptcy. Among the items listed in the husband's schedule in bankruptcy was the alimony in gross indebtedness in question.

The wife subsequently sought to garnish the husband's wages for the alimony in gross she claimed due pursuant to the divorce decree.

As indicated, the trial court found that the alimony in gross was an "alimony obligation" and not dischargeable in bankruptcy.

The husband argues that alimony in gross in Alabama is in the nature of a property settlement, not a support obligation, and therefore is dischargeable in bankruptcy. We agree.

The law is well settled that support obligations are not dischargeable, whereas divisions of property not in the nature of support are dischargeable under the bankruptcy code. See In re Pody, 42 B.R. 570 (Bankr.N.D.Ala.1984).

The dispositive issue, therefore, is whether alimony in gross is more in the nature of a support obligation or a division of property. If the latter, the trial court is due to be reversed.

That the separation agreement did provide for alimony in gross, as such, is not open to question. That is, the provision quoted above has all of the indicia of "alimony in gross": (1) it was unequivocally designated as such; (2) it mandated the payment of a sum certain at a definite time; and (3) the wife's right to the money was vested. See Hardwick v. Hardwick, 314 So.2d 76 (Ala.Civ.App.1975).

In the landmark case on alimony in gross in Alabama, the supreme court distinguished between "periodic alimony" and "alimony in gross." See Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Unlike periodic alimony, the court held, alimony in gross is nonmodifiable and in the nature of "a property settlement award, compensating the wife only for the loss of her rights in her husband's estate." Hager, 293 Ala. at 55, 299 So.2d at 751.

Although the cases that follow Hager sometimes use the word "support" in discussing alimony in gross, the word is typically used in the following context:

"Alimony in gross...