February 25, 2013 § 1 Comment

It was long the rule in Mississippi that only several forms of alimony were available, either by adjudication or agreement, and any variance from those forms was either reversible error or would be charcaterized by the appellate court as what its features dictated. See, e.g., Bowe v. Bowe, 557 So.2d 793, 795 (Miss. 1990). Unless otherwise specified by the trial court or from the context, alimony was presumed to be periodic. Wray v. Wray, 394 So.2d 1341, 1345 (Miss. 1981).

Then the appellate courts began to approve so-called “hybrid” agreements that mixed features of property settlement with alimony features, as in East v. East, 493 So.2d 927, 929 (Miss. 1986), where unmodifiable payments of $5,000 a month to the ex-wife would continue whether husband remarried or dies, but would terminate on wife’s death. The courts continued to affirm an array of such arrangements, but cautioned in McDonald v. McDonald, 683 So.2d 929, 933 (Miss. 1996), that the parties should be careful in drafting agreements with hybrid  arrangements, and that, if the agreement is unclear, the payments will be presumed to be periodic alimony.

The problem with “hybrid” alimony is in the drafting. The devil is in the ambiguity.

The latest incarnation is Hollis v. Baker, a COA case decided February 12, 2013, in which the parties had agreed to the following provision:

[Hollis] shall pay [Baker] $500 . . . in alimony per month beginning on the first day of the month after the sale of the marital home is finalized. [Hollis] will increase alimony to $1,000 . . . per month beginning the month after child support ceases, to continue for the life of [Baker]. In the event [Baker] dies, these $1,000 . . . per month payments shall be made to the minor child until the death of [Hollis].

Hollis sued to modify the obligation because Baker had remarried, and Baker took the position that the payments were unmodifiable. The chancellor ruled for Baker because Hollis had agreed to continue making the payments even beyond Baker’s death, which logically would extend beyond her remarriage. Hollis appealed.

The COA reversed, and, since so much of the opinion, written by Judge Roberts, is of some import for practitioners, I quote at length here:

¶11. Over fifteen years ago, the Mississippi Supreme Court urged parties, attorneys, and judges to carefully draft property-settlement agreements to avoid future confusion and litigation over ambiguously drafted provisions. McDonald v. McDonald, 683 So. 2d 929, 932-33 (Miss. 1996). In McDonald, the supreme court stated:

[The] freedom to contract is not absolute, however, and parties and judges should be mindful of the traditional characteristics of lump[-]sum and periodic alimony in drafting their agreements and decrees for alimony payments. When possible, it would be advisable for parties and judges to pattern their alimony agreements and decrees for non-modifiable lump[-]sum alimony according to established precedent of this Court.

Id. at 932. The case before us is illustrative of the need for clear and careful drafting of property-settlement agreement provisions, particularly as these provisions relate to periodic monthly payments being considered by the parties as alimony or as a contractual division of marital property.

¶12. Hollis’s sole issue on appeal involves the chancery court’s finding that the provision in the agreement regarding alimony required him to continue paying Baker alimony even after she remarried. According to Hollis, this alimony provision is permanent periodic alimony, making it subject to termination upon remarriage of the alimony recipient.

¶13. There are four types of alimony available in Mississippi: periodic, lump sum, rehabilitative, and reimbursement. West v. West, 891 So. 2d 203, 212 (¶20) (Miss. 2004). “As a general rule, periodic alimony has no fixed termination date; instead, it automatically terminates at the death of the obligor or the remarriage of the obligee.” Id. at (¶21) (emphasis added). There is no dispute that permanent periodic alimony is modifiable and terminable even within the context of a property-settlement agreement. See Taylor v. Taylor, 392 So. 2d 1145, 1146-47 (Miss. 1981); Stone v. Stone, 385 So. 2d 610, 613 (Miss. 1980); Hughes v. Hughes, 221 Miss. 264, 268, 72 So. 2d 677, 678 (1954). Additionally, it is accepted that there are other provisions of a property-settlement agreement that are not modifiable. See McDonald v. McDonald, 683 So. 2d 929, 932-33 (Miss. 1996). Ultimately, the issue before us is whether the chancery court erred in determining that this provision was a property settlement provision and not permanent periodic alimony subject to termination upon remarriage of the recipient.

¶14. At issue is a portion of the agreement titled Child Custody and Property-Settlement Agreement that was signed by both Hollis and Baker prior to their divorce and incorporated into their divorce decree by the chancery court. Among other things, this agreement detailed the amount of alimony Hollis would pay Baker. Paragraph IV, subsection H of the agreement provides as follows:

[Hollis] shall pay [Baker] $500 . . . in alimony per month beginning on the first day of the month after the sale of the marital home is finalized. [Hollis] will increase alimony to $1,000 . . . per month beginning the month after child support ceases, to continue for the life of [Baker]. In the event [Baker] dies, these $1,000 . . . per month payments shall be made to the minor child until the death of [Hollis].

¶15. This provision was modified by the chancery court on July 17, 2006. The chancery court stated in its July 17, 2006 decree and judgment that “the alimony [Hollis] is currently paying should be reduced from the sum of $500 . . . per month, to $350 . . . [per] month, effective July 1, 2006.” By modifying this provision, the chancery court acknowledged that this alimony was permanent periodic alimony and not some type of hybrid of alimony and property settlement as Baker claims. It is well settled that permanent periodic alimony is subject to modification and ceases upon the recipient’s remarriage or the payor’s death. See McDonald, 683 So. 2d at 931; Hubbard v. Hubbard, 656 So. 2d 124, 129 (Miss. 1995); Bowe v. Bowe, 557 So. 2d 793, 794 (Miss. 1990); Wray v. Wray, 394 So. 2d 1341, 1344 (Miss. 1981).

¶16. In the dissent authored by Judge Fair, he would find that the chancellor was correct in viewing Hollis’s obligation to continue paying alimony as a non-modifiable contract obligation between the parties. To support this position, he cites to In re Kennington’s Estate, 204 So. 2d 444, 445 (Miss. 1967) involving a settlement agreement between husband and wife that he would pay her a monthly sum until she died or was remarried and that it would be a binding obligation upon his estate. The following language was included in the provision:

[Husband] shall pay [wife $750] on June 1, 1954, and [$750] on the first day of each successive month thereafter throughout the lifetime of said [wife], or until she remarries. If she remarries, this [provision] shall thereafter be ineffective but this [provision] shall not be affected by the death of [husband]. [Husband] binds himself, his heirs, executors and assigns, to this covenant and obligation to her even after his death.

Id. at 445-46. In its opinion, the supreme court quoted the following language of the chancery court’s opinion: “The attorneys for the respective parties understood the legal differences between alimony and a property settlement and carefully and skillfully avoided the death of the then husband having any affect on the agreed payment each month. . . . In the [above-quoted provision] of this agreement[,] there is no doubt as to the intention of the parties.” Id. at 447. The supreme court then stated that “[i]t was the manifest intention of the parties that the obligation to make the payment should survive the death of [husband].” Id. at 449. We submit that the facts of the current case are easily distinguishable from the facts in Kennington primarily on the ground that the provision in the current case is completely silent as to whether alimony terminates upon her remarriage. In the above quoted language of Kennington, the provision explicitly states that it is the intent of the parties to have the $750 payments continue beyond the husband’s life. Thus, it was abundantly clear that as long as wife did not remarry, she was entitled to payment by either husband or husband’s estate for the remainder of her life.

¶17. The provision in the current case is simply silent on whether Hollis would continue paying Baker alimony after her remarriage. Moreover, in the present case, a prior judicial determination that the monthly payments for support were alimony subject to modification had been made by the chancellor, a determination from which Baker did not appeal. Such circumstance did not exist in Kennington. Without such an explicit provision requiring Hollis to continue alimony payments beyond Baker’s remarriage, we decline to require Hollis to continue such payments. Baker has a new husband capable of providing adequate spousal support.

¶18. Because this type of alimony terminates upon the subsequent marriage of the recipient, Hollis’s obligation to continue paying Baker alimony was terminated when Baker remarried in April 2010; therefore, we reverse and render the chancery court’s decision on this issue and the finding that Hollis was in contempt for his missed alimony payments after Baker remarried.

Whether you agree or disagree with the COA’s conclusion here, the point is made that, unless you specifically address survivability and modifiability of alimony with respect to remarriage, death and changes in circumstances, the questions arising therefrom will be resolved in favor of holding it to be periodic alimony, with all of the attendant and resulting attributes. In other words, the default setting is periodic alimony, unless you clearly, unequivocally and unambiguously change the setting.

I am sure Ms. Baker was somewhat disappointed with the outcome of this case. She now has no alimony, where before she anticipated that it would continue even beyond the grave for the benefit of her child.

Maybe this is one of those cases where the MSSC will give it another look and another spin. But I would not count on it. Draftsmanship would have made all the difference here.

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