126 So. 3d 1029
Ala. Civ. App.2013Background
- Divorce decree (Feb. 6, 2007) split assets: wife received residence, real property, and financial assets; husband received remaining real estate and Double Delta, Inc.
- Paragraph 14 required husband to pay wife $2,500 monthly for 96 months ($240,000 total), secured by real/personal property and life insurance, with security decreasing over time.
- Divorce judgment allowed wife to secure refinancing for husband’s business as long as she remains fully secured for the payments.
- Husband filed a post-judgment modification (May 30, 2008) contending paragraph 14 was rehabilitative periodic alimony; wife argued it was nonmodifiable alimony in gross.
Remarriage of wife (July 2008) and cessation of payments by husband (May 2009) occurred prior to trial on modification.
Trial court (Nov. 17, 2011) found paragraph 14 to be periodic alimony and terminated it; after postjudgment motion, March 5, 2012 order vacated and reentered, still terminating the obligation; wife appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nature of paragraph 14: alimony in gross or periodic | Lacey argues paragraph 14 is alimony in gross, a property division not modifiable. | Lacey argues it is periodic alimony payable from current earnings and modifiable. | Paragraph 14 is alimony in gross. |
| Whether the right to payments vest under paragraph 14 | Wife contends the right is vested and not subject to modification. | Husband contends lack of vesting (ends at wife's death) defeats alimony in gross. | Right vested; not subject to modification. |
| Effect of security provisions and survivability on classification | Security by husband’s estate and life insurance indicates alimony in gross. | Security provisions do not convert to alimony in gross; may reflect periodic alimony. | Security and survivability support alimony in gross. |
Key Cases Cited
- Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974) (distinguishes alimony in gross from periodic alimony; vesting criteria)
- TenEyck v. TenEyck, 885 So.2d 146, 151-52 (Ala.Civ.App.2003) (vesting and characteristics of alimony in gross)
- Kilgore v. Kilgore, 572 So.2d 480 (Ala.Civ.App.1990) (terms suggesting periodic alimony vs alimony in gross; relevance of remarriage/death language)
- Trammell v. Trammell, 523 So.2d 437 (Ala.Civ.App.1988) (right to payment not vested despite certain total amount and period; language indicating periodic alimony)
- Cheek v. Cheek, 500 So.2d 17 (Ala.Civ.App.1986) (necessity of vesting language to classify alimony as in gross)