Robert J. Sugarman - Page 9

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          Cunningham v. Commissioner, T.C. Memo. 1994-474, where the Court            
          found a provision to be ambiguous on the issue of terminability.            
          That provision read as follows:                                             
               "Husband shall pay to Wife for her support and                         
               maintenance the sum of $2,500.00 per month on the tenth                
               day of each month, for 142 months".  [Id.; fn. ref.                    
               omitted.]                                                              
               The Court found that the provision was ambiguous because it            
          was unclear whether Husband's liability to pay was for 142 months           
          absolute or whether it was contingent on Wife's need for support            
          and maintenance, and therefore the Court looked to extrinsic                
          evidence to determine intent.  In the instant case, we are faced            
          with no such ambiguity.  To the contrary, the payments were                 
          specifically required to be secured by petitioner.4  Furthermore,           
          while petitioner contends that the payments were intended to                
          "prop up Colleen", neither the agreement nor the addendum provide           
          for modification of the payments if she should become self-                 
          sufficient before the end of 24 months.  Similarly, they did not            
          provide for modification if Colleen's needs remained unchanged at           
          the end of 24 months.  When the terms of the writing are clear              


               4  The addendum contains a provision which reads:                      
                         To secure payment of the Twenty Thousand                     
                    Dollars ($20,000.00) to Wife, Husband shall                       
                    execute a mortgage on said premises in Wife's                     
                    favor which shall be delivered to Wife                            
                    simultaneously with her delivery of the deed                      
                    to Husband.  Said mortgage shall provide for                      
                    a 30 day written notice of default prior to                       
                    foreclosure.                                                      




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