This case calls for a distinction between periodic alimony and lump sum alimony. The question is important because the obligation to pay periodic alimony terminates at the death of either party while the obligation to pay lump sum alimony in installments over a period of time does not.
Dolvin v. Dolvin,
In 1985, the Winokurs executed a settlement agreement and the superior court made it a part of the decree in their divorce action. The agreement calls for unallocated child support and alimony in the amount of $7,000 per month for 84 consecutive months commencing May 1, 1985, and continuing through and including April 1, 1992. This appeal comes from a summary judgment granted to the wife in a declaratory judgment action. The trial court ruled that the contract provision constituted a lump sum award to be paid in installments. We affirm.
1. The wife in this case treated the payments as lump sum but the husband treated them as periodic alimony, resulting in inconsistent income tax returns. The cases from this court give a superficial appearance of a similar inconsistency. We undertake here the task of resolving both the dispute and any apparent inconsistencies in our holdings.
For our purpose, the trail of legal reasoning on this subject begins with
Bisno v. Bisno,
The next stage in the evolution of this legal precept comes from
Duncan v. Duncan,
The gratuitous dictum in
Duncan
was carried forward in
Nash v. Nash,
We agree with
Bisno.
We find the dicta in
Duncan
to have been unnecessary and conclude that
Nash
departed from the correct rule. This does not constitute a new position for this court. We clearly staked out and occupied this position in
Rooks v. Rooks,
We recognize that Rooks, Stone and Bradberry dealt with a party’s obligation to pay a specific debt in installments, and one could technically argue that the magic words of the total amount were uttered by reference to the total debt owed. However, ascertaining the gross amount by reference to another document outside the agreement makes the obligation no more fixed than does the ability to calculate the gross amount by multiplication. Consider the illogic of a holding resulting in a rule which says the inclusion of the total amount due renders one result while the inclusion of all of the words and numbers which lead by mathematical certainty to the total amount due renders a different result.
This is the kind of legal gyration which the court discourages, and society abhors. Therefore, we adopt a rule of logic and clarity. If the words of the documents creating the obligation state the exact amount of each payment and the exact number of payments to be made without other limitations, conditions or statements of intent, the obligation is one for lump sum alimony payable in installments. This squares with Bisno. Only dicta in Duncan and the holding in Nash differ from this.
2. Having identified the rule, we now turn to the application of the rule to this case. Husband argues he is entitled to rely on Nash being the law when he agreed to the settlement. While the position is arguable, Rooks was decided before the execution of the agreement in this case, and all of the precedential underpinning for Nash was available to the parties. Furthermore, the plain words of continuing duty here speak for themselves. The contract provides that husband shall have no obligation to reimburse wife for any federal or state income taxes incurred by reason of alimony payments. We view this simply as a protective device for the husband’s benefit guarding against possible changes in the tax laws. The contract also requires the husband to maintain life and disability insurance which in effect secure the payment obligations and it prohibits modification. We do not find these provisions to amount to limitations, conditions, restrictions or expressions of intent contrary to the plain words which created the continuing duty.
Judgment affirmed.
