WRAY v. WRAYNo. 52584.
394 So.2d 1341 (1981)
Benjamin C. WRAY
Sarah Dawn WRAY.
Sarah Dawn WRAY.
Supreme Court of Mississippi.
March 11, 1981.
Virgil G. Gillespie, Gulfport, for appellant. Jimmy D. McQuire, Gulfport, for appellee.
Before ROBERTSON, BROOM and HAWKINS, JJ.
HAWKINS, Justice, for the Court:
This is an appeal by the appellant Benjamin C. Wray from a final decree or order of the Chancery Court of Harrison County construing a divorce decree theretofore rendered by the same court, and awarding certain alimony to the appellee Sarah Dawn Wray to have been a "lump sum" alimony provision as opposed to "periodic or continuing alimony."
We reverse and render.
On August 10, 1979, a final decree for divorce was granted the appellee Sarah Dawn Wray from her husband the appellant Benjamin C. Wray, containing the following language:
Wray paid three of the monthly installments of $400.00 beginning September 1, 1979, through November 1, 1979. Mrs. Wray remarried November 19, 1979.
The issue before the chancellor at the hearing held on May 7, 1980, was whether or not the above provision of the decree awarding alimony in the amount of $400.00 per month for 24 months was "lump sum alimony" or "periodic or continuing alimony." The chancellor was of the opinion that the alimony award for the first 24 months in the amount of $400.00 per month was clearly lump sum. His opinion states:
The chancellor thereupon dismissed the petition of the appellant Wray to terminate the alimony payments on the ground that the appellee had remarried.
This appeal presents the sole question of whether the chancellor correctly interpreted the former decree rendered by himself in that court.
The interpretation of a Tennessee judgment was involved in the case of Gillum v. Gillum,
In this case the chancellor found no ambiguity in the divorce decree, and interpreted the language of the decree itself in reaching his decision.
Was he correct? Or, was the provision above referred to periodic or continuing alimony?
This Court is firmly committed to the principle that periodic or continuing alimony is terminated upon the death or remarriage of the wife. Sides v. Pittman, 167 Miss. 751, 150 So. 211 (1933); Bridges v. Bridges,
As to lump sum or gross alimony, Bunkley and Morse's Divorce and Separation in Mississippi, Section 6.07 states: "Where alimony is awarded in a lump sum, it is a final settlement between the husband and wife as to the extent of his duty to contribute to her support which cannot be changed or modified on the application of either party for any cause whatever." This same authority, Section 6.06 states the court may, in its discretion, "... award a definite sum in gross, payable presently or in installments, or allow a reasonable sum to be paid continuously, at stated intervals, for such time as may be limited in the decree." (Emphasis added) Lump sum alimony, due and payable in one installment is a fixed obligation just as accrued alimony payments. Guess v. Smith, 100 Miss. 457, 56 So. 166 (1911); Rainwater v. Rainwater,
See also, Sanford v. Cowan,
Since Aldridge, this Court has not specifically addressed the issue of whether a provision for lump sum alimony, due and payable however in fixed installments for a definite period of time, is terminated by the death or remarriage of the divorced wife.
Despite the language of Aldridge, we think the rule in this state should be that the chancery court has discretionary authority and power to award lump sum alimony in a sum certain, or alimony in gross, as it is sometimes called, and permit
Also, 27A CJS Divorce, Section 235, p. 1080:
Ordinarily, in a divorce case special circumstances must exist before chancery courts award a specific lump sum as alimony. Sometimes it substitutes for a division of property, or for periodic alimony, at others to take care of some special or immediate need of the wife. Generally, however, it is thought of as a fixed and certain sum of money which is awarded the wife, the payment of which may, because of the financial condition of the husband, be spread over a period of time, but nevertheless absolutely due and payable in fixed installments. See 27 CJS Divorce Section 235, pp. 1074-1080. Whether the award is periodic alimony or lump sum can also have substantial income tax consequences for the divorced parties, payments under the former being considered income to the divorced wife, and a taxable deduction to the husband, while the latter is not. Title 26, Section 71, U.S.Code.
In this case, therefore, if the chancellor was correct in his interpretation of the decree that the provision to pay $400.00 per month for 24 months was a lump sum alimony provision, the obligation to pay did not terminate with Mrs. Wray's remarriage. If such provision was in reality alimony in the usual sense, however, the obligation to pay terminated upon her remarriage.
Our construction of the decree varies from the learned chancellor. The language of the decree indicates a different meaning, effect and legal consequence to us. The decree did not award a fixed and certain sum of money which was due and payable over a definite period of time. Had the decree awarded Mrs. Wray $9,600.00 in lump sum, due and payable, however, over a period of 24 months in fixed installments at the rate of $400.00 per month, such would have constituted a clear recognition the alimony to be in gross, or lump sum. We also hold that because lump sum alimony, or alimony in gross, as a general rule is awarded in special situations under the broad discretionary authority of the chancery court, a decree awarding alimony should be construed as providing for periodic alimony, subject to change or termination because of the future situation of the parties, unless the decree by clear and express language imports lump sum alimony, or alimony in gross. Simple draftsmanship on the part of attorneys in their preparation of divorce decrees can clearly differentiate between the two types of awards, and thereby obviate the necessity of courts having to pass upon this question.
REVERSED AND RENDERED.
PATTERSON, C.J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, and BOWLING, JJ., concur.
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