EDWARD MESSER V LYDIA F . MESSER
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RENDERED : MAY 20, 2004
TO BE PUBLISHED
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2001-SC-0455-DG
EDWARD MESSER
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-600
KNOX CIRCUIT COURT NO. 98-CI-116
V
LYDIA F. MESSER
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING
Edward and Lydia Messer were married on September 21, 1985. They
separated on March 3, 1998, and Edward filed a petition for dissolution of the marriage
two days later. The marriage produced no children . At the time of their divorce, the
parties had accumulated marital property consisting of furniture and appliances and two
motor vehicles, and had incurred approximately $28,000 .00 in marital debts . During a
hearing before the domestic relations commissioner on September 24, 1998, the parties
reached a verbal agreement with respect to a division of their property and debts and
with respect to Lydia's claim for maintenance . The agreement was reduced to writing in
the form of a decree entered on October 22, 1998 . The decree was signed by the trial
judge and by the respective attorneys, as "seen and agreed to" but the Messers,
themselves, did not sign. With respect to spousal maintenance, paragraph 12 of the
judgment recites:
Petitioner is to pay maintenance to Respondent in the amount of
$350.00 per month on the fifth day of each month until the fifth day of the
month of Respondent's 62nd birthday, the first payment having been
made by Petitioner on October 5, 1998.
Lydia's sixty-second birthday will occur on July 16, 2007 .
Within a few months of the entry of the decree, Lydia married Edward's nephew.
On May 14, 1999, Edward filed a motion to terminate his maintenance obligation
pursuant to KRS 403.250 which provides, inter alia:
(1)
Except as otherwise provided in subsection (6) of KRS 403.180,'
the provisions of any decree respecting maintenance may be
modified only upon a showing of changed circumstances so
substantial and continuing as to make the terms unconscionable .
(2)
Unless otherwise agreed in writing or expressly provided in the
decree, the obligation to pay future maintenance is terminated upon
the death of either party or the remarriage of the party receiving
maintenance .
The trial court denied the motion and the Court of Appeals affirmed . We now
reverse the Court of Appeals because Lydia's remarriage terminated Edward's
maintenance obligation by operation of law. KRS 403.250(2) .
In 1972, the Kentucky General Assembly repealed many of our former divorce
statutes, 1972 Ky. Acts, ch . 182, § 29, and replaced them with sections of the Uniform
Marriage and Divorce Act ("Uniform Act"), promulgated by the National Conference of
Commissioners on Uniform State Laws in 1970, as amended in 1971 . Id . §§ 1-15 . KRS
403 .250(2) is identical to Section 316(b) of the Uniform Act. See Unif. Marriage &
KRS 403.180(6) provides that "[e]xcept for terms concerning the support, custody, or
visitation of children, the decree may expressly preclude or limit modification of terms if
the separation agreement so provides ."
_2_
Divorce Act § 316(b) (amended 1971, 1973), 9A U.L.A. 489-90 (1987). The
Commissioners' Comment to Section 316(b) provides :
Subsection (b) authorizes the parties to agree in writing or the court
to provide in the decree that maintenance will continue beyond the death
of the obligor or the remarriage of the obligee . In the absence of such an
agreement or provision in the decree, this section sets the termination
date for the obligation to pay future maintenance .
Id . at 490.
Virtually every court that has interpreted a statute modeled on Section 316(b) has
held that the termination provision applies whether the maintenance is periodic or in a
lump sum payable in installments, and that the intent to require maintenance to continue
after the death of either party or the remarriage of the obligee will not be implied but
must be expressly stated . E.g .., Diefenbach v. Holmberg, 26 P.3d 1186, 1187-88 (Ariz.
Ct . App. 2001) (monthly payments for period of years; language that agreement was
"non-modifiable" insufficient) ; In re Marriage of Glasser , 226 Cal . Rptr. 229, 230-31 (Cal.
Ct. App. 1986) (same) ; Daopoulos v. Daopoulos , 354 S .E .2d 828, 829-30 (Ga. 1987)
(monthly payments "until child reaches age eighteen" insufficient ; "language must be
clear and unequivocal") ; Moore v. Jacobsen , 817 A.2d 212, 214 (Md . 2003) (monthly
payments for period of years ; "nonmodifiable" clause insufficient - agreement not to
terminate must be express) ; Gunderson v. Gunderson , 408 N.W .2d 852, 853 (Minn .
1987) (monthly payments for period of years ; parol evidence of parties' intent
insufficient) ; Cates v. Cates , 819 S.W .2d 731, 737 (Mo . 1991) (en banc) (lump sum
payable in monthly installments ; language that maintenance was "contractual in nature,
not subject to modification by the Court" insufficient) ; MacNelly v. MacNelly, 437 S .E .2d
582, 583-84 (Va . Ct. App. 1993) (monthly payments for fixed period ; inclusion of
provision that maintenance would terminate upon death of either party did not create
inference that maintenance would not terminate upon obligee's remarriage) ; In re
Marriage of Williams , 796 P.2d 421, 425 (Wash . 1990) (monthly payments for four years
or until obligee obtained her bachelor's degree; language that maintenance provision
was "not modifiable by a court" insufficient) . In effect, KRS 403.250(2) inserts a
provision for termination of maintenance upon the death of either party or the
remarriage of the obligee into every decree unless the parties expressly agree
otherwise in writing or the decree expressly provides otherwise . Snow v. Snow, 745
P .2d 196, 200 (Ariz. Ct. App. 1987), disapproved of on other grounds by Schroeder v.
Schroeder, 778 P .2d 1212, 1219 (Ariz. 1989) .
In Clark v. Clark, Ky. App., 601 S.W.2d 614 (1980), the decree provided that
maintenance payments to the ex-wife would terminate upon her death or remarriage but
made no mention of the contingency of the ex-husband's death . Clark held that in the
absence of an express provision in the decree that maintenance would not terminate
upon the death of the obligor, the obligor's death terminated the maintenance obligation .
Id . at 616. Similar to the holding in MacNelly, supra , Clark also held that an agreement
that maintenance would not terminate upon the obligor's death could not be inferred by
the provision that maintenance would terminate upon the death of the obligee . Id .
In John v. John, Ky. App., 893 S.W .2d 373 (1995), the maintenance obligor
sought to invoke KRS 403 .250(2) when the obligee remarried . The panel in John
attempted to distinguish Clark on grounds that the maintenance obligation in Clark was
established in a decree whereas the obligation in John was established in a written
settlement agreement of the parties . The panel in John reasoned that the "expressly
provided" language in KRS 403.205(2) applied to decrees, not agreements, and that by
agreeing to pay maintenance for a specified period of time, the obligor had "agreed in
writing" that maintenance would not terminate upon the obligee's remarriage. Id. at 376 .
The Supreme Court of Washington rejected this same reasoning in Williams , supra , by
pointing out that when an agreement has been incorporated into a decree, the decree
governs the rights of the parties, not the agreement . Id. at 206 . See also Cates, supra ,
at 736 (agreement incorporated into decree becomes a part of the decree for purposes
of determining whether obligation to pay future maintenance after death or remarriage
was "expressly provided in the decree."). The opinion in John, supra , does not reveal
whether the separation agreement construed in that case had been incorporated into a
decree . See KRS 403 .180(4)(a) . Nevertheless, we reject the circular reasoning that by
merely executing a written agreement to pay maintenance, the obligor has ipso facto
"agreed in writing" that maintenance will not terminate upon the death of either party or
the obligee's remarriage .
John , supra , also held that a maintenance provision for a specific, lump-sum
amount payable over a fixed period of time cannot be terminated . Id, at 375-76 (citing
Dame v. Dame , Ky., 628 S.W.2d 625, 627 (1982)) . Dame, however, construed KRS
403.250(1) (modification because of changed circumstances), see Low v. Low, Ky., 777
S .W .2d 936, 937 (1989), not KRS 403 .250(2) (termination upon death or remarriage
unless agreed or decreed otherwise) .
Similar to Clark, su ra, in which the agreement only mentioned the obligee's
death or remarriage, not the obligor's death, the agreement in John , supra, provided
that maintenance would terminate upon the death of the obligee but contained no
provision with respect to the obligee's remarriage . Id. at 374. Noting that the provision
stated that the contract "contains the entire understanding of the parties," the opinion
recites that "the court cannot add terms or conditions not set forth by the parties ." Id . at
375. However, the provision that maintenance terminates upon the obligee's
remarriage is added to the agreement by statute "[u]nless otherwise agreed in writing or
expressly provided in the decree." KRS 403.250(2) . Cf. Snow v. Snow, supra, at 200
(statute expresses public policy that maintenance terminates at death or remarriage,
unless otherwise expressly provided) . We conclude that absent a specific statement in
the written agreement or in the decree that maintenance will not terminate upon the
death of either party or the obligee's remarriage, the occurrence of one of those
statutory contingencies terminates the maintenance obligation by operation of law. To
the extent that John holds otherwise, it is overruled .
Our holding moots the parties' dispute as to whether the maintenance obligation
in the case sub iudice was established by an "agree[ment] in writing ." See Calloway v.
Calloway, Ky. App ., 707 S .W .2d 789, 791 (1986) (agreement dictated to court reporter
satisfied requirement of KRS 403 .180(1) that separation agreement be "written").
Whatever its original form, the agreement became a part of the decree when its
provisions were adopted verbatim therein . The maintenance provision is silent as to
whether it would terminate upon Lydia's remarriage . Thus, upon her remarriage, it
terminated by operation of law. KRS 403.250(2) .
Accordingly, we reverse the Court of Appeals and remand this case to the Knox
Circuit Court for further proceedings in conformance with the content of this opinion .
Lambert, C.J. ; Johnstone, Stumbo, and Wintersheimer, JJ ., concur. Keller, J .,
concurs by separate opinion, with Graves, J ., joining that concurring opinion .
COUNSEL FOR APPELLANT :
Scott M . Webster
Jensen, Cessna & Benge
303 South Main Street
London, KY 40741-1906
COUNSEL FOR APPELLEE:
Lydia Messer Smith, pro se
P .O. Box 1893
Barbourville, KY 40906
RENDERED : MAY 20, 2004
TO BE PUBLISHED
,9uprant (9ourf of ~tttfurkg
2001-SC-0455-DG
EDWARD MESSER
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-600
KNOX CIRCUIT COURT NO. 98-CI-116
V.
LYDIA F . MESSER
APPELLEE
CONCURRING OPINION BY JUSTICE KELLER
I concur in the majority opinion's holding, but write separately because I believe
that, instead of merely distinguishing "the elephant in the room," Dame v. Dame ,' this
Court should take this opportunity to overrule it.
In Dame, this Court held that although open-end maintenance awards may be
modified under KRS 403 .250 on the basis of a change in circumstances, lump-sum
maintenance awards are not subject to modification . A lump-sum award is a fixed and
determinable amount and payable either in one lump-sum payment or in installments .2
' Ky., 628 S .W .2d 625 (1982).
2 _Id . at 627 ("'Hence, we conclude that where, as here, maintenance is in a fixed
and determinable amount to be paid either in a lump sum or is for a specific amount to
be paid over a definite term, unless the power to do so is expressly reserved by the
court, it is alimony in gross and has the finality of a judgment, and thus, is not subject to
modification on the basis of a change in circumstances . . . ."' (quoting In Re Marriage
of Gallegos , 580 P .2d 838, 840 (1978), overruled by Sinn v. Sinn , 696 P .2d 333,
335 (Colo. 1985)); 15 L . GRAHAM & ,1. KELLER, KENTUCKY PRACTICE, DOMESTIC RELATIONS
LAW § 16.21 (2 nd ed . West Group 1997) ("An award may be characterized as lump sum
even though it is payable in installments . A lump sum award must involve a fixed and
determinable amount .") ; BLACK'S LAW DICTIONARY 73 (7th ed . 1999) ("alimony in gross .
In the present case, maintenance is payable in a determinative amount, i.e. , "until the
fifth day of the month of Respondent's 62 nd birthday," and, thus, is properly
characterized as lump-sum maintenance.
In John v. John ,3 the separation agreement provided for the husband to pay the
wife as maintenance "the total sum of $1,320,000" in installment payments over a tenyear period . The agreement, however, did not contain a provision for termination of the
husband's maintenance payments upon the wife's remarriage . The wife remarried
before the expiration of the ten-year period, and the husband sought to terminate his
maintenance obligation under the separation agreement. The Court of Appeals found
Dame controlling precedent4 and held that the husband had agreed to pay lump-sum
maintenance, which is not modifiable . Accordingly, the Court of Appeals determined,
under the aegis of Dame , that the wife's remarriage did not terminate maintenance.
The majority overrules John , and I agree that John should be overruled.
However, because Dame is the linchpin of John , I would also overrule Dame or at least
sound its death knell louder than the majority does . I acknowledge that Dame , strictly
speaking, construed subsection (1) of KRS 403 .250, which deals with modification of
maintenance upon a showing of "changed circumstances," and that John involved
subsection (2), which provides for termination of maintenance upon death or
remarriage . But, while the John Court may have broadened Dame 's holding somewhat,
Alimony in the form of a single and definite sum not subject to modification . -- Also
termed lump-sum alimony.").
3 Ky. App., 893 S .W.2d 373 (1995)
4 John, 893 S.W .2d at 375 ("However, we believe the Dame case is controlling in
this circumstance . Dame unequivocally holds, noting the purposes of KRS 403 .110
and particularly the need for finality between divorcing parties, that lump-sum
maintenance awards, paid in one installment or many installments, are not subject to
modification .").
John 's holding hardly "came out of left field"; it simply relied upon Dame's conclusion
that lump-sum maintenance awards should be treated differently from open-ended
maintenance awards in that lump-sum maintenance awards should be construed as
final and unalterable .5
The broader issue addressed in Dame, and the issue that I believe this Court
should address again in this opinion today, was whether the legislature "in enacting
KRS 403.250 intend[ed] to extend the jurisdiction of the circuit court so as to permit it to
amend or modify a lump sum award of maintenance as well as an open-end award? ,,6
In my opinion, this Court answered the question incorrectly in Dame, and we need not
and should not wait another twenty-two (22) years for another case to provide the
correct answer and overrule Dame ; I would do so now for the benefit of the trial bench
and the practicing bar.
Graves, J ., joins this concurring opinion .
5 Dame , 628 S .W .2d at 627.
6 Id . at 626 .
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