                        T.C. Memo. 2000-373



                      UNITED STATES TAX COURT



                 THOMAS D. BERRY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2387-00.                  Filed December 11, 2000.


     Kenneth W. Klingenberg, for petitioner.

     Donald E. Edwards and Keith Aqui, for respondent.



                        MEMORANDUM OPINION



     ARMEN, Special Trial Judge:   This matter is before the Court

on the parties’ cross Motions for Partial Summary Judgment under

Rule 121(a).1   As explained in detail below, we shall grant


     1
        Unless otherwise indicated, all Rule references are to
the Tax Court Rules of Practice and Procedure and all section
references are to the Internal Revenue Code in effect for 1996,
the taxable year in issue.
                                - 2 -

respondent’s motion and we shall deny petitioner’s motion.

Background2

     Petitioner resided in Stillwater, Oklahoma, at the time that

his petition was filed with the Court.

     On January 17, 1995, Kay Rogers Berry (Mrs. Berry)

instituted a divorce action against Thomas D. Berry (petitioner)

in the District Court for Payne County, Oklahoma (State court).

Shortly thereafter, on February 9, 1995, the State court granted

Mrs. Berry an award of $6,000 for attorney’s fees.   Later that

year, on August 9, 1995, the State court modified its February 9,

1995, order to require petitioner to pay the additional sum of

$30,000 for attorney’s fees and costs.

     On August 28, 1996, the State court ordered petitioner to

pay Mrs. Berry the additional sum of $154,000 for attorney’s

fees.    This amount was ordered to be paid for services that had

already been rendered by Mrs. Berry’s attorney and not for

services to be rendered in the future.   The August 28, 1996,

order did not state whether petitioner would remain liable for

the payment of the $154,000 amount if Mrs. Berry should die

before such amount were paid.

     On April 1, 1997, the State court issued a decree of divorce


     2
        What follows in the text is a summary of the relevant
facts. They are stated solely for the purpose of deciding the
pending cross-motions for partial summary judgment, and they are
not findings of fact for this case. See Fed. R. Civ. P. 52(a);
Rule 1(a).
                               - 3 -

to petitioner and Mrs. Berry consistent with the terms of a

settlement agreement that they had previously executed on March

17, 1997.

      Petitioner claimed a deduction in the amount of $220,000 for

alimony on his Federal income tax return for 1996.   Respondent

subsequently issued a notice of deficiency determining a $62,811

deficiency in petitioner’s income tax for 1996.   The deficiency

is based in substantial part on respondent’s disallowance of

$154,000 of the $220,000 deduction for alimony claimed by

petitioner.   Petitioner filed a timely petition with the Court

challenging the notice of deficiency.

      After respondent filed an answer to the petition, petitioner

filed a Motion for Partial Summary Judgment seeking a summary

adjudication that his payment of $154,000 of Mrs. Berry’s

attorney’s fees pursuant to the State court’s August 28, 1996,

order constituted alimony within the meaning of section 71 that

is deductible under section 215.   Respondent filed an objection

to petitioner’s motion, to which petitioner filed a reply.

      This matter was called for hearing at the Court’s motions

session in Washington, D.C.   Counsel for respondent appeared at

the hearing and made an oral Cross Motion for Partial Summary

Judgment that petitioner’s payment of Mrs. Berry’s attorney’s

fees does not constitute alimony within the meaning of section

71.   Although no appearance was made by or on behalf of
                                - 4 -

petitioner at the hearing, petitioner did file a Rule 50(c)

statement with the Court.

Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.   See Florida Peach Corp.

v. Commissioner, 90 T.C. 678, 681 (1988).   Summary judgment may

be granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law.”   Rule 121(b); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th

Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).   The moving

party bears the burden of proving that there is no genuine issue

of material fact, and factual inferences will be read in a manner

most favorable to the party opposing summary judgment.   See

Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.

Commissioner, 79 T.C. 340, 344 (1982).

     Based on our review of the record, we are satisfied that

there is no genuine issue as to any material fact and that

partial summary judgment may be rendered as a matter of law.

     Section 71(a) provides the general rule that alimony
                                - 5 -

payments are included in the gross income of the payee spouse,

while section 215(a) provides the general rule that alimony

payments are deductible by the payor spouse.   Section 215(b)

provides in pertinent part that the term “alimony” means any

alimony, as defined in section 71(b), which is includable in the

gross income of the recipient under section 71.   Section 71(b)

defines alimony as follows:

          SEC. 71(b) Alimony Or Separate Maintenance
     Payments Defined.–-For purposes of this section--

            (1) In General.-–The term “alimony or separate
          maintenance payment” means any payment in cash if-

                 (A) such payment is received by (or on
          behalf of) a spouse under a divorce or separation
          instrument,

                 (B) the divorce or separation instrument
          does not designate such payment as a payment which
          is not includible in gross income under this
          section and not allowable as a deduction under
          section 215,

                 (C) in the case of an individual legally
          separated from his spouse under a decree of
          divorce or of separate maintenance, the payee
          spouse and the payor spouse are not members of the
          same household at the time such payment is made,
          and

                 (D) there is no liability to make any such
          payment for any period after the death of the
          payee spouse and there is no liability to make any
          payment (in cash or property) as a substitute for
          such payments after the death of the payee spouse.

     The parties agree that petitioner’s payment of Mrs. Berry’s

attorney’s fees satisfies the requirements set forth in section

71(b)(1)(A), (B), and (C).    However, the parties disagree whether
                               - 6 -

petitioner’s payment satisfies section 71(b)(1)(D); i.e., whether

petitioner’s liability to pay Mrs. Berry’s attorney’s fees would

terminate in the event of her death.

     Although Federal law controls in determining petitioner’s

income tax liability in this case, State law is necessarily

implicated in the inquiry inasmuch as the nature of petitioner’s

liability for the payment of Mrs. Berry’s attorney’s fees depends

on Oklahoma law.   See, e.g., Sampson v. Commissioner, 81 T.C.

614, 618 (1983), affd. without published opinion 829 F.2d 39 (6th

Cir. 1987), and cased cited therein.   In Estate of Bosch v.

Commissioner, 387 U.S. 456, 465 (1967), the Supreme Court

addressed the means for determining State law, in the context of

a Federal tax case, stating:

     the State’s highest court is the best authority on its
     own law. If there be no decision by that court then
     federal authorities must apply what they find to be the
     state law after giving “proper regard” to relevant
     rulings of other courts of the State. In this respect,
     it may be said to be, in effect, sitting as a state
     court. Bernhardt v. Polygraphic Co., 350 U.S. 198
     (1956).

     Petitioner contends that, under Oklahoma law, a divorce

proceeding terminates with the death of one of the spouses and

the court loses all jurisdiction over the matter.   Relying on

this principle, petitioner contends that, because the August 28,

1996, order directing him to pay Mrs. Berry’s attorney’s fees was

only temporary, his liability to make such payments would have

terminated upon Mrs. Berry’s death, thereby bringing the payments
                               - 7 -

within the definition of alimony under section 71(b).   See sec.

71(b)(1)(D).

     In contrast, respondent, relying on several Oklahoma State

court decisions, contends that petitioner’s obligation to pay

Mrs. Berry’s attorney’s fees would not have terminated upon Mrs.

Berry’s death.

     The parties have not cited any Oklahoma State court case

deciding the narrow legal question presented herein, and we are

not aware of any such case.   Under the circumstances, we must do

our best “to discern what such State’s highest court would

decide.”   Estate of Young v. Commissioner, 110 T.C. 297, 302

(1998).

     We begin our analysis of State law with Okla. Stat. Ann.

tit. 43, §110 A.1.e (West Cum. Supp. 1999), which vests Oklahoma

courts with the authority to issue temporary orders regarding

attorney’s fees in divorce actions.3   In conjunction with this

provision, Okla. Stat. Ann. tit. 43, §110 B. (West Cum. Supp.

1999), provides in pertinent part:


     3
        Okla. Stat. Ann. tit. 43, §110A.1.e (West Cum. Supp.
1999), provides in pertinent part:

     §110. Orders concerning property, children, support
     and expenses
          A. After a petition has been filed in an action
     for divorce or separate maintenance either party may
     request the court to issue:
           1. A temporary order:
                    *   *   *    *  *   *   *
              e. regarding attorney’s fees * * *
                               - 8 -

           Any temporary orders may be vacated or modified
     prior to or in conjunction with a final decree on a
     showing by either party of facts necessary for vacation
     or modification. Temporary orders terminate when the
     final judgment on all issues, except attorney fees and
     costs, is rendered or when the action is dismissed.
     * * *

Neither provision speaks directly to the question of the

viability of such temporary orders in the event of the death of

one of the spouses to the divorce proceeding.

     Petitioner correctly asserts that in Oklahoma, the death of

a spouse, before entry of a final divorce decree, generally

terminates the cause of action.   In Pellow v. Pellow, 714 P.2d

593 (Okla. 1985), the Supreme Court of Oklahoma, the State’s

highest court, held in pertinent part:

          A cause of action for a divorce is purely
     personal, and it has been held that such a cause of
     action terminates on the death of either spouse before
     the entry of the final decree. In effect, the trial
     court is deprived of its jurisdiction. If, on the
     other hand, the trial court has entered a decree, it
     has been held that the death of a spouse does not
     affect the matter.

Id. at 597 (emphasis added)(citing Mabry v. Baird, 203 Okla. 212,

219 P.2d 234 (1950)).

     Where a spouse in a divorce action dies after entry of a

final divorce decree, however, the action generally is

unaffected.   For example, in Mabry v. Baird, supra, the trial

court had entered a final divorce decree reserving the matter of

the wife’s claim for attorney’s fees for further hearing.   The

wife died before the court held its further hearing on the issue
                                - 9 -

of attorney’s fees.   Under the circumstances, the Supreme Court

of Oklahoma held that the trial court had jurisdiction to enter

an order awarding attorney’s fees to the legal representative of

the deceased wife.    For a similar holding, see Swick v. Swick,

864 P.2d 819 (Okla. 1993) (where a spouse in a divorce proceeding

died after the entry of a final divorce decree, but before the

court decided the deceased spouse’s motion for attorney’s fees,

the deceased spouse’s attorney had standing to move for the

payment of his client’s attorney’s fees).

     The Supreme Court of Oklahoma has recognized that an

attorney’s standing to seek the payment of attorney’s fees in a

divorce action is not always contingent on the trial court’s

continuing jurisdiction over the divorce proceeding.   In Kelly v.

Maupin, 58 P.2d 116 (Okla. 1936), a case somewhat analogous to

the instant case, the Supreme Court of Oklahoma held that, where

a trial court had entered a temporary order awarding attorney’s

fees to a wife in a divorce proceeding, the wife’s attorney had

the right to enforce that order through contempt proceedings

brought against the husband, even though the wife had filed a

dismissal with respect to her divorce petition in the interim.

The court held in pertinent part:

     We do not think it is essential to a determination of
     this case to decide definitely whether this order was
     effective as a dismissal of the divorce action.
     Regardless of its effect in that particular, it was, in
     our judgment, obviously ineffective to destroy the
     previous order made by the court, in so far as that
                              - 10 -

     order was for the benefit of the plaintiff’s attorney.

Id. at 118.

     Although the Supreme Court of Oklahoma has not addressed the

narrow legal issue presented in the instant case, the cases cited

above, particularly Kelly v. Maupin, supra, lend support to

respondent’s position that petitioner would have remained liable

for the payment of attorney’s fees, either to representatives of

Mrs. Berry’s estate or directly to Mrs. Berry’s attorney, had

Mrs. Berry died before entry of a final divorce decree by the

State court.   Kelly v. Maupin, supra, suggests that the Supreme

Court of Oklahoma considers the award of attorney’s fees to have

continuing viability regardless of the status of the underlying

divorce action.

     We note that the majority of State courts considering this

question have concluded that an award of attorney’s fees remains

viable and enforceable notwithstanding the death of one spouse

before entry of a final divorce decree.   See Stackhouse v.

Stackhouse, 484 N.W.2d 723 (Mich. Ct. App. 1992); Centazzo v.

Centazzo, 556 A.2d 560 (R.I. 1989); Hirsch v. Hirsch, 519 So.2d

1056 (Fla. Dist. App. 1988); State ex rel. Paxton v. Porter

Superior Court, 467 N.E.2d 1205 (Ind. 1984); Williams v.

Williams, 281 A.2d 273 (N.J. 1971); Spiro v. Spiro, 260 N.E.2d

332 (Ill. App. Ct. 1970); Gunther v. Gunther, 301 S.W.2d 207

(Tex. Civ. App. 1957); Briggs v. Briggs, 1 S.E.2d 118 (N.C.
                              - 11 -

1939); Ballard v. Caperton, 59 Ky. 412 (Ky. 1859); see also

Zinsmeister v. Commissioner, T.C. Memo. 2000-364 (interpreting

Minnesota law); Smith v. Commissioner, T.C. Memo. 1998-166

(interpreting Georgia law).   But cf. Hogsett v. Hogsett, 409

S.W.2d 232 (Mo. Ct. App. 1966); Greer v. Greer, 130 P.2d 1050

(Colo. 1942).

     Courts upholding the viability of awards of attorney’s fees

frequently focus on the public policy underlying the statutory

provisions authorizing such awards; i.e., providing otherwise

needy spouses with the means to retain counsel in divorce

actions.   See Stackhouse v. Stackhouse, supra at 726; Williams v.

Williams, supra at 275-276.   Such courts point out that a

spouse’s access to counsel would be unduly restricted if counsel

were required to bear the risk that his or her client might not

survive until a final divorce decree is entered.    On the other

hand, courts holding that awards of attorney’s fees in divorce

proceedings do not survive the death of a spouse merely seek to

impose a bright line rule that such awards abate with the death

of a spouse before the entry of a divorce decree.

     Considering Oklahoma case law, as well as the policy

underlying awards of attorney’s fees in divorce actions, we

conclude that the Supreme Court of Oklahoma would hold that

petitioner would remain liable for the attorney’s fees that the

State court awarded to Mrs. Berry in 1996 even if Mrs. Berry had
                             - 12 -

died before entry of a final divorce decree.    Consistent with the

foregoing, we shall grant respondent’s oral Motion for Partial

Summary Judgment and we shall deny petitioner’s Motion for

Partial Summary Judgment.

     To reflect the foregoing,

                                      An order granting

                                 respondent’s oral Motion for

                                 Partial Summary Judgment

                                 and denying petitioner’s

                                 Motion for Partial Summary

                                 Judgment will be issued.
