Opinion
Docket No. 99401.
Decided February 17, 1988.
Debra Nickin Ribitwer, for plaintiff. William A. Basse, for defendant.
In this divorce action, defendant appeals as of right from a circuit court order denying his motion to terminate alimony. We affirm.
The parties were divorced in 1985. A consent agreement providing for alimony and a property settlement was incorporated into the divorce judgment. The alimony provision required defendant to pay plaintiff $36,000, payable in installments over four years. In 1987, defendant moved to terminate alimony because plaintiff allegedly remarried. Following a hearing in March, 1987, the circuit court denied the motion because the divorce judgment provided for alimony in gross and was not modifiable.
On appeal, defendant submits two issues for our consideration. First, defendant argues that the trial court erred in finding that the alimony provision could not be modified. We disagree.
The general rule is that alimony in gross is not modifiable absent a showing of fraud. Hall v Hall, 157 Mich. App. 239, 241; 403 N.W.2d 530 (1987). It has been defined as a court-ordered obligation to pay a fixed sum to a divorced spouse. Oknaian v Oknaian, 90 Mich. App. 28, 35; 282 N.W.2d 230 (1979). Payments may be made in either a lump sum or in installments for a specific period of time. Hall, supra, p 241.
In determining whether the alimony provision negotiated and agreed to by plaintiff and defendant provided for alimony in gross, we must consider the parties' intent. See Vigil v Vigil, 118 Mich. App. 194; 324 N.W.2d 571 (1982), and Hall, supra, p 246 (M.G. HARRISON, J., concurring). Ambiguities in a consent judgment of divorce may be interpreted and clarified, so long as this does not change the substantive rights of the parties. Bers v Bers, 161 Mich. App. 457; 411 N.W.2d 732 (1987).
Here, the alimony provision contains no ambiguity as to the parties' intent. It is entitled "ALIMONY IN GROSS," contains a fixed sum payable in installments over a specific period of time, and expressly states that "this clause is non-modifiable." The only clause which arguably indicates that alimony in gross was not intended is contained in the paragraph terminating defendant's obligation to pay alimony upon plaintiff's death. In Hall, supra, this Court, relying on Hagerty v Hagerty, 222 Mich. 166, 169; 192 N.W. 553 (1923), found that an alimony provision providing for the termination of alimony upon the death of the payee spouse was not alimony in gross because the amount owed was not specifically ascertainable. By contrast, the panel in Couzens v Couzens, 140 Mich. App. 423, 428; 364 N.W.2d 340 (1985), indicated in dicta that a provision providing for the termination of alimony on the death of the wife did not bear upon the gross alimony issue.
We disagree with the panel in Hall because our Supreme Court's decision in Hagerty does not necessarily mean that a provision requiring the payee spouse to survive the fixed payment period transforms an alimony in gross award to periodic alimony. The alimony provision in Hagerty was found unaffected by the payee spouse's death, because the amount allowed was in gross and expressly stated that it was in lieu of the payee spouse's dower in her husband's property. Hagerty did not address the effect of an express survivorship contingency in an alimony provision. Where, as here, the alimony provision provides for a fixed amount and expressly states that it is nonmodifiable, the intent of the parties to provide for alimony in gross is clear. The amount of the award, although contingent on plaintiff's survival, is ascertainable. Moreover, we find it significant that defendant's obligation to pay alimony in installments was only contingent upon plaintiff's surviving the fixed payment period. In the event of defendant's death, the alimony provision provided that the balance must be paid by his estate.
At most, defendant has demonstrated that plaintiff's survivorship contingency was agreed to in order to effectuate their express intent that the payments be deductible to defendant and taxable to plaintiff as alimony in accordance with §§ 71 and 215 of the Internal Revenue Code, 26 U.S.C. § 71 and 26 U.S.C. § 215. This is because the gross income of the payee spouse includes amounts received as alimony only if there is no liability to make any such payment for any period after the death of the payee spouse. 26 U.S.C. § 71(b)(1)(D). However, as Judge M.G. HARRISON observed in his concurring opinion in Hall, supra, p 247, the standards in § 71 for distinguishing between periodic alimony and alimony in gross have not been adopted in Michigan, and we decline to do so. From the clear language of the alimony provision, we conclude that it only provided for alimony in gross. Plaintiff's survivorship contingency, alone, is not enough to transform the alimony provision from one in gross to one providing for periodic alimony. To hold otherwise would change the substantive rights of plaintiff provided for in the alimony provision.
Next, defendant argues that his obligation to pay alimony terminated under MCL 552.13(2); MSA 25.93(2), because plaintiff allegedly remarried. This statutory provision, however, does not require that alimony be terminated upon a payee spouse's remarriage. It only provides that a court may terminate alimony upon remarriage. The statutory authority for modifying an alimony award is found in MCL 552.28; MSA 25.106. Crouse v Crouse, 140 Mich. App. 234, 238; 363 N.W.2d 461 (1985). An exception to this authority is recognized for alimony in gross. Hall, supra, p 241, and Oknaian, supra, p 37. We, therefore, find no merit in defendant's argument.
Affirmed.