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Commissioner, T.C. Memo. 2003-92, affd. sub nom. Hawley v.
Commissioner, 94 Fed. Appx. 126 (3d Cir. 2004); Kean v.
Commissioner, T.C. Memo. 2003-163.
The Court agrees with respondent that the payment at issue
is not alimony under section 71(b)(1)(D) because, under the terms
of the agreement and under Florida law, petitioner's obligation
to make the payment would have continued if Ms. Lima had died
prior to payment of the stock option proceeds. In Canakaris v.
Canakaris, 382 So.2d 1197, 1201 (Fla. 1980), the Florida Supreme
Court stated:
Although the award of lump sum alimony is not dependent
upon a finding of a prior vested right, there does arise
upon the entry of a final judgment of a lump sum award a
vested right which is neither terminable upon a spouse's
remarriage or death nor subject to modification. It may
consist of real or personal property, or may be a monetary
award payable in installments. Jurisdiction may be
expressly retained, however, to terminate lump sum alimony
installment payments upon a spouse's remarriage or death
when the parties agree to such a provision in a property
settlement agreement. Further, jurisdiction may be retained
to enter periodic alimony if found necessary after such
termination of lump sum alimony installment payments. * * *
Not only did the agreement and the divorce decree fail to provide
that petitioner's obligation for payment of the stock option
proceeds would terminate upon the prior death of Ms. Lima, there
were also no reservations that would have allowed the parties
thereafter to incorporate such a condition upon petitioner's
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