Gore v. Gore

While I concur in the disposition of Assignment of Error No. I, I must dissent as to the disposition of Assignments of Error Nos. II and III. The scope of these two claimed errors is captured in a single paragraph of the trial court's judgment, which reads:

"It is further ORDERED, ADJUDGED and DECREED that the plaintiff [William] pay to the defendant [Marie] as and for alimony the sum of one thousand four hundred dollars ($1,400.00) per month, plus two percent (2%) poundage, until further order of court, said sum shall be paid through the Bureau of Support, Summit County, Ohio. In addition, plaintiff shall maintain the defendant asbeneficiary on his term life insurance policy with the FirstColonial Life Insurance Co. and he shall pay the premium[s]thereon as they become due; this order pertaining to lifeinsurance shall remain in effect for as long as plaintiff has aresponsibility for payment of sustenance alimony." (Emphasis added.)

The trend nationally, as the majority has noted, is to make sustenance alimony payments terminable upon a date certain. A fixed date offers finality between the parties and provides a definite time frame encouraging the dependent spouse's self-sufficiency. An award which fails to specify either a termination date or a reconsideration date is effectively one for life. It creates a disincentive for the dependent spouse and prolongs or even avoids independence.

The granting of interminable alimony should be employed only in those cases having unusual circumstances such as where the dependent spouse is physically or mentally disabled. See, for example, Davis v. Davis (1982), 184 N. J. Super. 430,446 A.2d 540 and similar cases collected in Annotation (1974), 59 A.L.R. 3d 9, 27, Section 5 and 1985 Supp., Section 5, at 4.

As to the second part of the order, dealing with the maintenance of a term life insurance policy without being authorized by statute, contractual agreement, or unusual circumstances which would call for such an extraordinary provision, I cannot agree that it is proper.

There is no question but that a trial court is granted wide discretion to fashion its divorce decree to meet the particular circumstances presented. However, the use of the maintenance of a term life insurance policy with Marie named as a beneficiary for so long as sustenance alimony is to be paid creates problems not easily resolvable. For example: what remedies are available to Marie if William fails to pay the premiums although he is current on alimony? Does the order of the court require William to secure a new policy upon expiration of the existing one? Does William have the right to change carriers or diminish the current value? Who has physical control over the policy? Was notice given to First Colonial Life Insurance Co. of the court's order? Upon William's death under Ohio law, will Marie be entitled to derive a direct benefit after William's death? Can Marie's activities affect the need to continue maintenance of the policy?

This type of insurance security should be available for the extraordinary case, but such use should only occur with the specific ramifications spelled out in the order. Here more rights are left indeterminate than are determined by the court's order.

Even when a court has been willing to recognize the maintenance of a life insurance policy to secure a child support order, such a requirement is tempered with the parental duty to support for the period of minority only. Thus, the unspecified time for the continuance of the payment of alimony and the maintenance of a term life insurance policy, under the facts of this case, are improper.