Winokur v. Winokur
| Decision Date | 25 February 1988 |
| Docket Number | No. 45038,45038 |
| Citation | 365 S.E.2d 94,258 Ga. 88 |
| Parties | WINOKUR v. WINOKUR. |
| Court | Georgia Supreme Court |
A. Paul Cadenhead, Elizabeth A. Bloom, Hurt, Richardson, Garner, Todd & Cadenhead, Atlanta, for Stanley Howard Winokur.
Alston & Bird, G. Conley Ingram, Jay D. Bennett, Atlanta, for Catherine Jean Kursman Winokur.
This case calls for a distinction between periodic alimony and lump sum alimony. The question is important because the obligation to pay periodic alimony terminates at the death of either party while the obligation to pay lump sum alimony in installments over a period of time does not. Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981); Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979). The Internal Revenue Code magnifies the importance by declaring periodic alimony taxable to the recipient and deductible by the payor, and installment payments of lump sum to be neither income nor deductible.
In 1985, the Winokurs executed a settlement agreement and the superior court made it a part of the decree in their divorce action. The agreement calls for unallocated child support and alimony in the amount of $7,000.00 per month for 84 consecutive months commencing May 1, 1985, and continuing through and including April 1, 1992. This appeal comes from a summary judgment granted to the wife in a declaratory judgment action. The trial court ruled that the contract provision constituted a lump sum award to be paid in installments. We affirm.
1. The wife in this case treated the payments as lump sum but the husband treated them as periodic alimony, resulting in inconsistent income tax returns. The cases from this court give a superficial appearance of a similar inconsistency. We undertake here the task of resolving both the dispute and any apparent inconsistencies in our holdings.
For our purpose, the trail of legal reasoning on this subject begins with Bisno v. Bisno, 239 Ga. 388, 236 S.E.2d 755 (1977), where we discussed holdings which decided that alimony in lump sum or in gross is in the nature of a property settlement whether designated as such or as alimony. In Bisno, the husband agreed to pay the wife sums of money under several schemes. One was clearly lump sum and another clearly terminated at her death or remarriage. Both this court and the parties acknowledged the first to be lump sum and the second to be periodic alimony, but when the wife remarried a difficulty arose with respect to a third item. That item required the husband to pay $100.00 per month for 121 months and went on to say that the payments "... shall be permanent alimony to wife and deductible by husband for tax purposes." The opinion recognized that the parties to an agreement of this sort generally consider tax consequences and that the Bisnos intended the payments to qualify as permanent alimony. The Internal Revenue Code as it existed at that time fortified that reasoning by limiting permissive installment payments of lump sum alimony to a period of ten years. The Bisno provision extended one month beyond that period. The court then concluded the arrangement constituted periodic alimony and not a property settlement so that it terminated at the wife's remarriage.
The next stage in the evolution of this legal precept comes from Duncan v. Duncan, 239 Ga. 789, 238 S.E.2d 902 (1977). In the agreement between these parties, the wife gave up any rights to periodic alimony, but a property division was effected under which each party got certain real estate. The real estate going to the wife was encumbered by a security deed, and the agreement obligated the husband to make the payments. The court held that the construction of the entire agreement led to the conclusion that the obligation to pay the mortgage was intended as a lump sum payment which was part of the property settlement. The court went on then to paraphrase the holding in Bisno and in doing so considerably broadened its effect. According to the dicta in Duncan, the absence of a recitation of a gross amount required to be paid (other than by multiplying the amounts due by the number of payment periods) causes the arrangement to be periodic alimony rather than lump sum alimony.
The gratuitous dictum in Duncan was carried forward in Nash v. Nash, 244 Ga. 749, 262 S.E.2d 64 (1979), as a direct holding that "A decree specifying periodic payments for a given time with no indication of gross amount other than by multiplying the amount due by the number of payment periods is alimony and is revisable...." Although Bisno v....
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In re Ackley, Bankruptcy No. G92-20423-REB. Adv. No. 93-2035.
...that very different consequences may result depending upon how an obligation is ultimately characterized. See e.g. Winokur v. Winokur, 258 Ga. 88, 90, 365 S.E.2d 94 (1988); see also Rooks, supra, 252 Ga. at 14-18, 311 S.E.2d 169 (Weltner, J., concurring). Thus, detailed rules developed to a......
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Daniel v. Daniel
...[OCGA § 19-6-19].... [Cit.]" Nash v. Nash, 244 Ga. 749, 750(1), 262 S.E.2d 64 (1979), overruled on other grounds, Winokur v. Winokur, 258 Ga. 88, 90(1), 365 S.E.2d 94 (1988). See also Dillard v. Dillard, 265 Ga. 478, 458 S.E.2d 102 (1995). Husband applied for a discretionary appeal, but his......
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Gray v. Higgins
...spouse (Ramsay v. Sims, 209 Ga. 228, 233-234, 71 S.E.2d 639, reversed on other grounds, Dolvin v. Dolvin, supra). Compare Winokur v. Winokur, 258 Ga. 88, 365 S.E.2d 94; Rooks v. Rooks, 252 Ga. 11, 15, 311 S.E.2d 169 (Weltner, J., concurring). This rule applies "to separation agreements as w......
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Rivera v. Rivera
...rather than relying on the language of the verdict awarding "permanent" alimony), disapproved on other grounds, Winokur v. Winokur, 258 Ga. 88, 90(1), 365 S.E.2d 94 (1988). Compare Metzler v. Metzler, 267 Ga. 892, 893(2), 485 S.E.2d 459 (1997) (where "the jury not only denominated its award......