IN RE: THE MARRIAGE OF BURRELL

IN RE: THE MARRIAGE OF BURRELL
2007 OK 47
192 P.3d 286
Case Number: 102470
Decided: 06/12/2007

THE SUPREME COURT OF THE STATE OF OKLAHOMA

IN RE: THE MARRIAGE OF WAYNE E. BURRELL, Petitioner/Appellant,
v.
BRENDA D. BURRELL, now WEBB, Respondent/Appellee.

CERTIORARI TO THE COURT OF CIVIL APPEALS,
DIVISION I

¶0 In 1997, the petitioner/appellant, Wayne E. Burrell (husband), and the respondent/appellee, Brenda A. Burrell, now Webb (wife), were divorced in a Georgia court. The divorce decree incorporated an agreement of the parties requiring that the husband pay the wife support alimony of $3,300.00 monthly until the wife died along with mandatory language that the agreement would be governed exclusively by Georgia law. Following the wife's remarriage in Oklahoma, the husband domesticated the Georgia decree. Thereafter, he filed a petition to terminate the support alimony obligation. The trial court refused to apply the choice of law provision as neither party resided in Georgia. The husband was ordered to continue payment of support alimony based on a determination that the language referring to payment of support until death waived the husband's right to seek termination. Reading the term "only" into the alimony provision, the Court of Civil Appeals affirmed. It concluded that Georgia law requiring termination of support alimony on remarriage, absent a provision otherwise, was repugnant to Oklahoma's statute,

COURT OF CIVIL APPEALS OPINION VACATED;
REVERSED AND REMANDED.

Jim Pearson, Jim Pearson, P.C., Oklahoma City, Oklahoma, for petitioner/appellant,
Sue E. Buck, Hugo, Oklahoma, for respondent/appellee.

WATT, J.:

¶1 Certiorari was granted to address a single issue. The question presented is whether support payments are subject to termination on remarriage under a Georgia divorce decree requiring payment of support until the death of the wife.

¶2 We hold that the support alimony provision providing for payment of support until the wife's death terminates the husband's duty to make alimony payments upon the wife's remarriage under both Georgia

FACTS AND PROCEDURAL HISTORY

¶3 On September 20, 1997, the parties were divorced. The Georgia decree incorporated the agreement of the parties that: 1) the husband would pay the wife support alimony on the fifteenth of each month "until the Wife dies;"6 and 2) the agreement, its application and interpretation should be governed "exclusively by the laws of the State of Georgia."7

¶4 After the divorce, the husband moved to Michigan and the wife relocated to Oklahoma, where she remarried on May 31, 2003. Almost six months later, on November 21, 2003, the husband registered the Georgia decree in the District Court of Choctaw County pursuant to the Uniform Enforcement of Foreign Judgments Act,

¶5 By agreement of counsel, the cause was submitted to the trial court on the pleadings and the briefs. The trial court found that: application of the choice of law provision contravened Oklahoma's fundamental policy favoring settlements and compromises; Oklahoma law should apply because of the lack of a substantial relationship between the parties and Georgia; and the right to terminate support alimony was waived by the provision in the agreement providing that the husband should pay support until the wife's death. In an opinion promulgated on September 22, 2006, the Court of Civil Appeals read the term "only" into the settlement,

¶6 UPON THE WIFE'S REMARRIAGE,
SUPPORT ALIMONY DESIGNATED AS PAYABLE
UNTIL THE WIFE'S DEATH IS SUBJECT TO
TERMINATION UNDER BOTH GEORGIA AND
OKLAHOMA STATUTORY LAW AND JURISPRUDENCE.

¶7 Despite the provision in the agreement calling for the application of Georgia law, the wife asserts that the cause should be governed by

a. Analysis of Georgia statute and caselaw.

¶8 The applicable Georgia statutory provision is Ga. Code 1982 §19-6-5. It provides in pertinent part:

". . . (b) All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided. . . ."

The Georgia Supreme Court has specifically addressed the "otherwise provided" language of the statute. In Daopoulos v. Daopoulos, 257 Ga. 71, 73, 354 S.E.2d 828 (1987), it held that, in order to avoid the general rule of termination of support on remarriage, the agreement must expressly refer to the remarriage of the recipient and specify that the event shall not terminate the permanent alimony obligations. Here, the language of the alimony provision provides only that the alimony will continue until the wife's death. It does not, as Daopoulos requires, address the remarriage issue nor does it provide that, in such an event, alimony will continue.

¶9 Georgia's highest court has remained faithful to Daopoulos. The appellate court has determined that utilization of the term "permanently" in association with alimony obligations is insufficient to require continued payment after remarriage.

¶10 Here, the alimony provision merely provides that the wife is entitled to receive alimony payments until her death.

b. Application of Oklahoma statutory and jurisprudential standards.

¶11 The clear, explicit, unmistakable and mandatory

¶12 The wife relies on Stuart v. Stuart,

¶13 The Stuart Court held that the evidence supported a finding that the decree was a consent decree which could not be modified and should not result in termination of support on death or remarriage. Nevertheless, in Stuart, the property settlement agreement did not designate whether the alimony payment, or any portion thereof, was support alimony or alimony in lieu of property division. Here, there is no such ambiguity. The agreement clearly designates the alimony as such and contains a separate provision encompassing the division of property.

¶14 The duty of the husband to make continuing support payments is not required under Oklahoma law for multiple reasons. First, the wife did not commence any action in an attempt to demonstrate her continued need or the husband's ability to pay the awarded monthly support. We considered almost identical statutory language

¶15 Second, the language of the decree, considered in light of Oklahoma jurisprudence, is insufficient in and of itself to support continued payments following the wife's remarriage. Although we have upheld the continued payment of alimony where the statutory protections are clearly waived by agreement of parties or otherwise,

¶16 In the instant cause, the decree requires the husband to make support alimony payments until the wife's death. It contains no language relating to the wife's remarriage or indicating that the statutorily based termination conditions of

CONCLUSION

¶17 This Court is duty bound to give effect to legislative acts, not to amend, repeal or circumvent them. No matter how sympathetic we might be to a party, we are without authority to rewrite a statute merely because the legislation does not comport with our conception of prudent public policy.21 Both Oklahoma and Georgia statutes and the respective jurisprudence of each state support termination of the support alimony obligation. Therefore, we reverse the trial court and remand for proceedings consistent with this opinion.

COURT OF CIVIL APPEALS OPINION VACATED;
REVERSED AND REMANDED.

ALL JUSTICES CONCUR.

FOOTNOTES

1 Ga. Code (1982), §19-6-5(b) providing:

"All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided."

Metzler

2 Title 43 O.S. 2001 §134(B) providing in pertinent part:

"The court shall also provide in the divorce decree that upon the death or remarriage of the recipient, the payments for support, if not already accrued, shall terminate. . . . Upon proper application the court shall order payment of support terminated and the lien discharged after remarriage of the recipient, unless the recipient can make a proper showing that some amount of support is still needed and that circumstances have not rendered payment of the same inequitable, provided the recipient commences an action for such determination, within ninety (90) days of the date of such remarriage."

Dickason

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. . . ."

". . . [C]omity of nations is defined as 'the courtesy by which nations recognize within their own territory, or in their own courts, the peculiar institutions of another nation, or the rights and privileges acquired by its citizens in their own land. . . .' '[T]he most appropriate phrase to express the true foundation and extent of the obligation of the law of one nation within the territory of another. It is derived altogether from the voluntary consent of the latter, and it is inadmissible when it is contrary to its known public policy or prejudicial to its interests. . . .'"

"ALIMONY

Husband shall pay to Wife alimony in the sum of Three Thousand Three Hundred Dollars (3,300.00) per month beginning on the fifteenth day of the month following the execution of this Agreement and on the fifteenth day of each month thereafter until the Wife dies. . . ."

"APPLICATION OF GEORGIA LAW

This agreement and the application and interpretation thereof shall be governed exclusively by the laws of the State of Georgia."

"Wayne did not seek the trial court to apply Georgia law, Indeed, he asserted:

The choice of law issue is a legal discussion without significance to the outcome of this discussion. Whether Georgia's automatic termination or Oklahoma's provision for asking for continuation is used, the conclusion is the same. . . ."

An argument need not be artfully drawn as long as it is fairly comprised within the pleadings presented to the trial court. See, Matthews v. Matthews,

"Upon proper application the court shall order payment of support terminated and the lien discharged after remarriage of the recipient, unless the recipient can make a proper showing that some amount of support is still needed and that circumstances have not rendered payment of the same inequitable, provided the recipient commences an action for such determination, within ninety (90) days of the date of such remarriage."