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JESSE BOYCE HOLLEMAN v. ELIZABETH CAREY SULLIVAN HOLLEMAN

MAY 18, 1988

JESSE BOYCE HOLLEMAN
v.
ELIZABETH CAREY SULLIVAN HOLLEMAN



EN BANC

ZUCCARO, JUSTICE, FOR THE COURT;

This is an appeal from a judgment of the Chancery Court of Harrison County dated September 13, 1985 granting a divorce to the appellee from the appellant and making provisions for child custody and support, alimony, health care and an equitable division of property. From said judgment, Jesse Boyce Holleman appeals, alleging six (6) assignments of error.

FACTS

 On November 1, 1970, appellant and appellee were married and from said marriage one child, Elizabeth Ruth Holleman was born on April 9, 1973. The parties continued to live together as husband and wife until March 21, 1984, at which time they were separated.

 May 18, 1984, Mrs. Holleman filed her complaint for divorce alleging as grounds habitual cruel and inhuman treatment. After a lengthy trial, the lower court granted a divorce to Mrs. Holleman on the grounds of habitual cruel and inhuman treatment. No appeal is made on the granting of the divorce. In its judgment rendered on September 13, 1985, the lower court made provision for the custody and support of Elizabeth Ruth Holleman, alimony and health care for appellee, an equitable division of the marital property as well as attorney's fees for Mrs. Holleman. On appeal the appellant challenges six (6) provisions of the lower court's judgment which we examine here.

 I. DID THE LOWER COURT ERR IN RULING THAT APPELLANT'S OBLIGATION TO PROVIDE APPELLEE ALL NECESSARY DENTAL EXPENSES AND BACK TREATMENT FOR THE YEARS 1985, 1986, AND 1987, AND APPELLANT'S OBLIGATION TO PAY APPELLEE PERIODIC ALIMONY WOULD CONSTITUTE AN OBLIGATION OF APPELLANT'S ESTATE?

 Paragraph 10 of the Judgment provides:

 Defendant shall pay unto Plaintiff the sum of $2,500.00 per month by way of `periodic alimony' for a period of ten (10) years and shall be responsible for all necessary dental expenses and back treatment which Plaintiff may incur during the years 1985, 1986 and 1987.

 In paragraph 19, the lower court again dealt with the duration of certain payments, including alimony, by specifically providing:

 . . . the obligations of child support, hospital, dental and optical care, back treatment, life insurance, alimony, debt indemnity, housing provision, maintenance and repair imposed upon Defendant by this Judgment shall constitute obligations of his Estate in the event of his demise or disability . . . . (emphasis added)

 The lower court in effect, made the payment of $2,500 per month periodic alimony a debt of Mr. Holleman's estate in the event he should die.

 It is well settled in this State that periodic or permanent alimony terminates upon the death of a husband or upon the remarriage of the wife. East v. East, 493 So.2d 927, 931 (Miss.1986). It would be said now, on the death of either party or remarriage of the party receiving alimony. On the other hand, lump sum alimony becomes vested in the party to whom it is awarded, and it does not terminate upon remarriage or death. It may be paid in installments. In East, supra, this Court stated that it is "doubtful" if any court has the power to make periodic alimony continue beyond the death of the husband. East at 931.

 In the present case, both parties recognize the $2,500 per month payments as being periodic alimony and appellee argues that periodic alimony should be treated in a similar manner as lump sum alimony so that it would become a vested interest and debt of the husband's estate. The present law in this State does not allow this to occur. East at 931. The lower court erred when it made the payment of periodic alimony a debt of Mr. Holleman's estate at his death. Also it is noted that there was a ten (10) year limitation on the "periodic alimony" . A fixed and certain sum of money which is due and payable over a definite period of time is clearly alimony in gross, or lump sum alimony, Wray v. Wray, 394 So.2d 1341, 1345 (Miss.1981), and not periodic alimony. Mrs. Holleman failed to cross-appeal on this point and we do not have the issue before us. Accordingly, we hold that the lower court erred when it made the payment of periodic alimony a debt of Mr. Holleman's estate at his death should it occur within the "ten year" period and the judgment is reversed and rendered as to this point.

 II. DID THE LOWER COURT ERR IN PLACING A SPECIAL

 LIEN AGAINST APPELLANT'S HOMESTEAD TO SECURE PAYMENT OF ALL SUMS ORDERED UNDER THE JUDGMENT OF DIVORCE?

 Paragraph 13 of the lower court's judgment provides that

 A special lien is hereby placed against Defendant's homestead at #5 Mockingbird Lane, Gulfport, First Judicial District, Harrison County, Mississippi to insure payment of all sums ordered to be paid by this Final Judgment . . . .

 A plain reading of paragraph 13 shows that the chancellor intended to secure payment of the judgment by placing a ...


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