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
                               - 6 -


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, 

, 121 (Mo.

Ct. App. 1986); Tzinberg v. Tzinberg, 

, 682 (Mo.

Ct. App. 1982); In re Marriage of Deatherage, 

(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,

, 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.

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
                               - 8 -


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.,

, 245 (Mo. Ct. App. 1986); Munn v. Garrett, 

, 39 (Mo. Ct. App. 1984); Orgill Bros. & Co., Inc. v.

Rhodes, 

, 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. 

.   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. 

.

     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
                               - 10 -


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.