Lump-Sum Alimony = Alimony?
December 1, 2014 § Leave a comment
Most of us tend to think in the 21st century that lump-sum alimony is a tool for equitable distribution; however, it does retain a small role in alimony itself, as the court’s analysis in a recent case illustrates.
In the November 6, 2014, MSSC case, Davenport v. Davenport, the chancellor had conducted a Ferguson analysis, and ordered Tammy Davenport to pay her ex, Richard, lump-sum alimony in the sum of $1,515,914.33, payable in monthly installments of $8,421.75 over 180 months. Tammy appealed, arguing on this point that the chancellor had erred by not making on-the-record findings of Tammy’s ability to pay applying the Armstrong factors.
Justice Randolph addressed the argument:
¶30. Lump-sum alimony can serve two distinct purposes. The first purpose is to aid the chancellor in equitably dividing the marital estate under the Ferguson factors. See Haney, 907 So. 2d 948. The second purpose is to aid the chancellor in correcting an equitable deficit, resulting from the equitable distribution of the marital estate under the Armstrong factors. See Rogillio v. Rogillio, 57 So. 3d 1246, 1249 (Miss. 2011).
Let’s pause right there and look at that second stated purpose. Lump-sum alimony has also been used as a replacement or supplement for permanent or rehabilitative spousal support, and to award a spouse’s substantial contribution to asset accumulation. See Bell on Mississippi Family Law, 2d Ed., § 9.02[b][ii]-[v], pp. 244-245. So it does retain a role in the award of alimony.
The analyses of equitable distribution and alimony pass through two entirely different filters. Equitable distribution is conducted applying the Ferguson factors. Alimony requires analysis of the Armstrong factors. Only if the equitable distribution leaves a deficit for one spouse may the court then proceed to consider alimony.
The Davenport decision continues, explaining the factors applicable to lump-sum alimony, and how they fit into the picture:
¶31. In Haney v. Haney, this Court found that the chancellor’s award of lump-sum alimony was allocated to equitably distribute the marital assets. Haney, 907 So. 2d at 952. This Court discussed how, prior to Ferguson, lump-sum alimony was the central mechanism through which marital property was divided. Haney, 907 So. 2d at 952. In Cheatham v. Cheatham, the Court set out factors to be taken into account when considering an award of lump-sum alimony. Cheatham v. Cheatham, 537 So. 2d 435, 438 (Miss. 1988). Based on the factors later presented in Ferguson, this Court stated:
Clearly, the Cheatham factors were simply an earlier attempt by this Court to provide a chancellor with guidelines for awarding what today is called an equitable distribution of marital assets, under appropriate circumstances. Indeed, we see no Ferguson factor which would be inappropriate in evaluating lump sum alimony. Although we continue to refer to certain payments as “lump sum alimony,” these payments are really no more than equitable distribution in the form of lump sum cash, rather than an equitable portion of certain property which cannot be divided equitably.
Haney, 907 So. 2d at 955.
¶32. This Court later considered an award of lump-sum alimony and reiterated that ” . . . the chancery court was obligated to apply the appropriate factors . . . the Cheatham-Ferguson factors. Yelverton v. Yelverton, 961 So. 2d 19, 25 (Miss. 2007). See also Dickerson v. Dickerson, 34 So. 3d 637, 647-48 (Miss. Ct. App. 2010) (After reviewing Haney and Yelverton, the court concluded that chancellors should consider lump-sum alimony under the Ferguson factors; however, an analysis under Cheatham is not reversible error.); George v. George, 22 So. 3d 424, 427-30 (Miss. Ct. App. 2009) (Lump-sum alimony was analyzed under this Court’s ruling in Haney, considering the Cheatham factors, while periodic alimony was analyzed under the factors set forth in Armstrong.); Dunn v. Dunn, 911 So. 2d 591 n.4 (Miss. Ct. App. 2005) (acknowledging that, pursuant to Haney, the Ferguson factors should be considered when determining an award of lump-sum alimony).
¶33. In Lauro v. Lauro, this Court described alimony as something which is contemplated subsequent to the equitable division of marital property. Lauro v. Lauro, 847 So. 2d 843, 848 (Miss. 2003). Lauro relies on the language set forth in Johnson v. Johnson, quoting:
If there are sufficient marital assets which, when equitably divided and considered with each spouse’s non-marital assets, will adequately provide for both parties, no more need be done. If the situation is such that an equitable division of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony based on the value of non-marital assets should be considered.
Lauro, 847 So. 2d at 848 (emphasis original) (quoting Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994)). Lauro further explains that the Armstrong factors must be considered when awarding alimony. Lauro, 847 So. 2d at 848. See Lowrey, 25 So. 3d at 280. (“Failure to make an on-the-record . . . analysis is manifest error.”).
¶34. If lump-sum alimony is awarded as a mechanism to equitably divide the marital assets, then chancellors may conduct their analysis under the Ferguson factors. Haney, 907 So. 2d at 955. However, if the alimony, lump-sum or otherwise, is awarded subsequent to the equitable distribution of the marital assets, then chancellors must conduct their analysis under the Armstrong factors. Lauro, 847 So. 2d at 848.
¶35. In the instant case, the chancellor fully considered the award of lump-sum alimony under the Ferguson factors because the award served as a means to equitably divide the marital property. Therefore, the chancellor appropriately conducted a Ferguson analysis in the findings of facts and conclusions of law incorporated it into the final decree; thus, the chancellor did not fail to adequately consider Tammy’s ability to pay the award. This issue is without merit. [Emphasis added]
I think it would simplify everything if we would:
- Leave the term “lump-sum alimony” exclusively to describe that post-Armstrong-analysis use of a lump-sum payment to supplement or replace true alimony or to reward substantial contribution to accumulation of assets; and
- Use the term “equalizing payment” or some similar phrase to apply to payments ordered under a Ferguson analysis to balance out the equitable division.
To continue to call something alimony that we all know has nothing to do with an Armstrong analysis invites confusion and the continued need to explain and clarify it in our case law, for no good reason. Lump-sum alimony was judicially created in 1856 to address a void in the law of alimony. It was created to allow lump-sum payments of true alimony in lieu of periodic payments. In the pre-Ferguson days, the court looked for a way to adjust equities around our title rules, and transmuted lump sum alimony into a tool to do that. Ferguson, however, changed this area of the law, yet the old terminology has remained confusingly in place. With the change ushered in by Ferguson, it’s appropriate that we should change our nomenclature.