T.C. Memo. 1997-169
UNITED STATES TAX COURT
BARBARA A. LANDRETH, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3487-95. Filed April 7, 1997.
Thomas E. Carew and Charles Fancher Jenson, for petitioner.
Charles J. Graves, for respondent.
MEMORANDUM OPINION
CARLUZZO, Special Trial Judge: This case was heard pursuant
to the provisions of section 7443A(b)(3) and Rules 180, 181, and
182. Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue. All
Rule references are to the Tax Court Rules of Practice and
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Procedure. Respondent determined a deficiency in petitioner's
1991 Federal income tax in the amount of $3,299.
The issue for decision is whether cash payments received by
petitioner in 1991 from her spouse must be included in her income
for that year as alimony or separate maintenance. The resolution
of this issue depends upon whether an entry made by a judge on
the docket sheet relating to a State court domestic relations
matter constitutes a divorce or separation instrument within the
meaning of section 71(b)(2).
Background
Some of the facts have been stipulated, and they are so
found. At the time of the filing of the petition, petitioner
resided in Joplin, Missouri.
Petitioner first married Edward H. Landreth (Mr. Landreth)
on August 25, 1971. At the time, she had three children from
previous marriages, including a son, Christopher Kyle Beeler
(Kyle). Petitioner and Mr. Landreth divorced in 1975. Sometime
in 1978, petitioner and Mr. Landreth remarried.
On December 18, 1985, petitioner filed a petition for
dissolution of her second marriage to Mr. Landreth in the Circuit
Court of Jasper County, Missouri (the circuit court). In
connection with that proceeding, on February 10, 1986, petitioner
filed a motion pendente lite for temporary maintenance and
attorney's fees and costs (the motion).
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Prior to a hearing on the motion, Charles Buchanan, her
attorney in that proceeding, spoke to Mr. Landreth's attorneys.
Although the details of the conversation or conversations between
these attorneys are unclear, they discussed the motion and
apparently agreed, presumably with the consent of their
respective clients, that Mr. Landreth would pay petitioner $1,800
per month as temporary maintenance. The attorneys also discussed
health insurance coverage for petitioner and Kyle and
petitioner's use of an automobile owned or controlled by Mr.
Landreth.
On February 20, 1986, a hearing on the motion was held
before Judge Richard Copeland. There is no transcript of the
hearing. The following docket sheet entry regarding the motion
was handwritten by Judge Copeland on the date of the hearing:
Pet. appears by Charles Buchanan. Per agreement. Pet.
motion for temporary maintenance is sustained &
respondent ordered to pay the sum of $1,800/mo to Pet.
as & for temporary maintenance. Pet. withdraws motion
for temporary att fees.
The docket sheet entry is neither signed nor initialed by Judge
Copeland.
Mr. Landreth began making temporary maintenance payments of
$1,800 per month to petitioner after the February 20, 1986,
docket sheet entry had been made. He did not make any temporary
maintenance payments to petitioner prior to the date of the
hearing.
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Since December 1985 and through the date of trial, Mr.
Landreth has paid for health insurance coverage for petitioner
and Kyle. In addition, Mr. Landreth allowed petitioner to use an
automobile that he owned or controlled. Mr. Landreth paid Kyle's
private high school tuition. He contributed to Kyle's checking
account, paid Kyle's credit card bills, and paid for some of
Kyle's vacations. None of these items were addressed in the
docket sheet entry.
A supplemental motion for temporary maintenance was filed on
petitioner's behalf by Mr. Buchanan on March 18, 1987. In the
supplemental motion, petitioner represented that she "previously
filed a motion for temporary maintenance and the court entered
its order granting her $1,800.00 per month". On June 24, 1987,
Mr. Landreth filed a motion to terminate or reduce "spousal
support".
Petitioner and Mr. Landreth lived separate and apart, but
remained married throughout 1991. During that year, petitioner
received $21,600 (12 monthly payments of $1,800) from Mr.
Landreth. On her 1991 Federal income tax return, petitioner did
not include any of the $21,600 she received from Mr. Landreth in
her income.
In the notice of deficiency, respondent determined that the
$21,600 petitioner received from Mr. Landreth constituted alimony
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or separate maintenance and adjusted her income accordingly,
explaining:
In order for the income to be tax free to you, it would
have had to have been so stated in the temporary
support order. * * *
Discussion
Section 61 defines gross income to mean income from whatever
source derived, including alimony or separate maintenance
payments. Sec. 61(a)(8).
Whether a payment constitutes alimony or separate
maintenance within the meaning of section 61(a)(8) is determined
by reference to section 71. Pursuant to section 71, a payment is
alimony if, in addition to meeting other requirements, the
payment is received by (or on behalf of) a spouse under a divorce
or separation instrument. Sec. 71(b)(1)(A). For purposes
relevant to the present dispute, the term divorce or separation
instrument means a decree requiring a spouse to pay for the
support or maintenance of the other spouse. Sec. 71(b)(2)(C). A
decree for support includes any type of court order or decree,
including an interlocutory decree of divorce or a decree of
alimony pendente lite, requiring one spouse to make payments for
the other spouse's support or maintenance. Sec. 1.71-(1)(b)(3),
Income Tax Regs.
The dispute in this case focuses upon whether the docket
sheet entry constitutes a decree, within the meaning of section
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71(b)(2)(C), that required Mr. Landreth to make support payments
to petitioner. The parties agree that Missouri law controls the
resolution of this dispute. A review of the relevant Missouri
statutes and procedural rules reveals that the terms "order" and
"judgment", rather than "decree", are used. We are satisfied
that an order or judgment that is issued by a Missouri court
constitutes a decree, which is defined by Black's Law Dictionary
410-411 (6th ed. 1990), as follows:
The judgment of a court of equity or chancery,
answering for most purposes to the judgment of a court
of law. A decree in equity is a sentence or order of
the court, pronounced on hearing and understanding all
the points in issue, and determining the rights of all
the parties to the suit, according to equity and good
conscience. It is a declaration of the court
announcing the legal consequences of the facts found.
With the procedural merger of law and equity in the
federal and most state courts under the Rules of Civil
Procedure, the term "judgment" has generally replaced
"decree". [Citations omitted.]
Accordingly, we consider whether the docket sheet entry is either
a valid order or judgment pursuant to Missouri law.
In Missouri, a judgment is the final determination of the
rights of the parties in the action. Mo. Ann. Stat. sec. 511.020
(West 1952). An order is every direction of a court or judge,
made or entered in writing and not included in a judgment. An
application for an order is a motion. Mo. Ann. Stat. sec.
506.050 (West 1952).
In Missouri, a request for relief pendente lite is in the
nature of an independent cause of action. Tate v. Tate, 920
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S.W.2d 98, 106 (Mo. Ct. App. 1996). An order granting relief
pendente lite is in the nature of a final judgment from which an
appeal may be taken. Huska v. Huska, 721 S.W.2d 120, 121 (Mo.
Ct. App. 1986); Tzinberg v. Tzinberg, 631 S.W.2d 681, 682 (Mo.
Ct. App. 1982); In re Marriage of Deatherage, 595 S.W.2d 36 (Mo.
Ct. App. 1980).
When a Missouri court does not render a judgment in the form
of a separate document signed by the judge and entered by the
clerk, the docket sheet entry may be examined to determine what
order or judgment, if any, the court rendered. Byrd v. Brown,
641 S.W.2d 163, 166-167 (Mo. Ct. App. 1982). Where it is clear
that a Missouri judge intended a docket sheet entry to be a
determination of the rights of the parties to the action and
shows in intelligible language the relief granted, the docket
sheet entry may be considered the order or judgment. Id.
According to petitioner the docket sheet entry is neither a
valid Missouri judgment nor order because: (1) It lacks the
requisite specificity to be enforced; and (2) the entry was not
signed by Judge Copeland. Petitioner further argues that the
payments were not made pursuant to the docket sheet entry, but
rather pursuant to an unwritten agreement between petitioner and
Mr. Landreth. Either way, according to petitioner, the payments
were not made pursuant to a divorce or separate maintenance
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instrument and do not constitute alimony within the meaning of
sections 61(a)(8) and 71.
The docket sheet entry identifies petitioner's motion for
temporary maintenance and reflects the appearance of counsel. It
also indicates the action taken; i.e., that Mr. Landreth was
ordered to pay petitioner $1,800 per month for temporary
maintenance and that petitioner had withdrawn her motion for
attorney fees. Although unsigned, it was handwritten by the
judge before whom the motion was presented. The docket sheet
entry did not include a directive to the parties to prepare a
written order or judgment for subsequent execution and entry, and
thus, there is no indication that the judge did not intend it to
be a final determination of the rights of the parties with
respect to the motion. See Grantham v. Shelter Mutual Ins. Co.,
721 S.W.2d 242, 245 (Mo. Ct. App. 1986); Munn v. Garrett, 666
S.W.2d 37, 39 (Mo. Ct. App. 1984); Orgill Bros. & Co., Inc. v.
Rhodes, 669 S.W.2d 302, 303-304 (Mo. Ct. App. 1984). The docket
sheet entry is a determination of the rights of petitioner and
Mr. Landreth with respect to the motion and shows the relief
granted in intelligible language. Consequently it satisfies the
requirements set forth in Byrd v. Brown, supra. We therefore
reject petitioner's argument that the docket sheet entry lacked
the requisite specificity to be considered an order or judgment.
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Petitioner's argument regarding the consequence of the
judge's failure to sign or initial the entry is also rejected.
Although the current version of the relevant Missouri rule of
civil procedure requires the signature of a judge on a judgement
or order, the version in effect at the time that the docket sheet
entry was made did not. Compare Mo. Ct. C.P.R. 74.01 (West 1996)
with Mo. Ct. C.P.R. 74.01 (West 1986). The docket sheet entry is
specific enough to be considered a judgment or order of the
circuit court, and the failure of the judge to sign the entry
does not render it invalid. See Byrd v. Brown, supra.
As a valid judgment or order under Missouri law, the docket
sheet entry constitutes a decree for purposes of section 71. It
follows, and we so hold, that the $21,600 petitioner received
from Mr. Landreth during 1991 pursuant to the decree constitutes
alimony or separate maintenance and must be included in her
income.
In arriving at our holding we have considered petitioner's
additional arguments that: (1) The docket sheet entry is not a
decree because it does not contain the necessary findings under
Mo. Ann. Stat. sec. 452.335 (West 1986); and (2) the docket sheet
entry merely records an oral agreement between Mr. Landreth and
petitioner, and we find such arguments to be without merit. With
respect to the former, we note that the cited statute does not
require the judge to include the required findings in a
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maintenance order; rather, the statute merely requires that
certain findings must be made prior to granting a maintenance
order.
In support of the latter argument petitioner suggests that
because Mr. Landreth provided other benefits to petitioner
outside of the terms of the decree all of the benefits she
received from Mr. Landreth, including the $1,800 monthly cash
payments, must have been made pursuant to something other than a
decree from the circuit court. We disagree. The decree might
have been based upon the agreement between petitioner and Mr.
Landreth, but it was a decree that ordered the payments
nonetheless. Respondent has not taken the position that the
other benefits conferred upon petitioner by Mr. Landreth,
pursuant to an oral agreement or otherwise, must be included in
her income under section 71. Moreover, petitioner's argument on
this point is undermined by actions taken by petitioner and Mr.
Landreth subsequent to the docket sheet entry that demonstrate
they considered the docket sheet entry to be the source of
Mr. Landreth's obligation to make the payments here under
consideration.
To reflect the foregoing,
Decision will be
entered for respondent.