Denise Von Herrmann v. Andrew Benjamin Von Herrmann
193 So. 3d 670
Miss. Ct. App.2016Background
- Denise and Andrew Von Herrmann divorced in October 2012; their parenting and property-settlement agreement was incorporated into the divorce decree.
- The agreement required Denise to pay Andrew "periodic alimony": $1,450/month from Aug 15, 2012 through Mar 15, 2016, then $500/month from Apr 15, 2016 through Sept 15, 2022, with payments terminating on death or Andrew’s remarriage/cohabitation.
- After divorce Denise’s earnings fell significantly (from $180,000 to $70,000, later $85,000), and she filed to modify her alimony obligation in July 2013.
- The chancery court held the agreed payments were lump-sum alimony (because of a fixed end date and fixed amounts) and therefore nonmodifiable, and denied modification.
- On appeal, the Court of Appeals reviewed contract interpretation de novo and found ambiguity in the agreement as to whether the payments were lump-sum or periodic.
- The appellate court considered contract-construction canons and extrinsic evidence (parties’ intent, use of payments as income, testimony about purpose) and concluded the parties intended periodic alimony; it reversed and remanded for modification proceedings.
Issues
| Issue | Plaintiff's Argument (Denise) | Defendant's Argument (Andrew) | Held |
|---|---|---|---|
| Whether the alimony in the settlement is lump-sum (nonmodifiable) or periodic (modifiable) | Agreement ambiguous; where intent unclear, presume periodic alimony | Agreement is a "hybrid" but substance shows lump-sum due to fixed amount and definite end date | Reversed: agreement construed as periodic alimony and therefore subject to modification |
| Whether court should rely on the label "periodic" or examine substance | Label and ambiguity favor treating payments as periodic | Substance should control; look beyond labels to fixed-term nature | Substance examined but ambiguity resolved in favor of periodic based on overall language and extrinsic evidence |
| Proper method for contract interpretation of settlement agreements | Apply "four corners," contract canons, then extrinsic evidence when ambiguous | Same framework but emphasizes substance test from precedent | Applied three-tiered approach; extrinsic evidence used to determine parties’ intent |
| Effect of provisions terminating payments on death/remarriage on characterization | Termination-on-death/remarriage supports periodic characterization | Termination clauses conflict with fixed-term language; other provisions support lump-sum | Termination provisions weighed as significant in finding periodic alimony |
Key Cases Cited
- Harris v. Harris, 988 So. 2d 376 (Miss. 2008) (sets three-tier contract-interpretation approach and standard of review)
- McDonald v. McDonald, 683 So. 2d 929 (Miss. 1996) (where intent unclear, payments presumed periodic)
- Creekmore v. Creekmore, 651 So. 2d 514 (Miss. 1995) (substance controls over labels in characterizing alimony)
- Wray v. Wray, 394 So. 2d 1341 (Miss. 1981) (periodic alimony treated as income to payee and deductible to payor)
- Neville v. Neville, 734 So. 2d 352 (Miss. Ct. App. 1999) (example of fixed-term payments characterized as lump-sum where substance and purpose supported that result)