Josephine Whitthorne Young v. William F. Young, Jr. ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 23, 2015
JOSEPHINE WHITTHORNE YOUNG v. WILLIAM F. YOUNG, JR.
Appeal from the Circuit Court for Shelby County
No. 1641518RD Robert Samual Weiss, Judge
No. W2014-02006-COA-R3-CV - Filed February 26, 2015
This post-divorce dispute concerns a divorce decree that required husband to pay one-half
of his retirement benefits to wife as alimony in solido. Fourteen years after the divorce,
Husband returned to the trial court to terminate the payments on the ground that by the terms
of the divorce decree, husband had been substantially overpaying wife. The trial court denied
husband’s petition on the alternative grounds of res judicata, and a finding that the divorce
decree obligated husband to pay wife one-half of the entire value of the retirement plan. We
reverse the trial court’s determination that res judicata bars husband’s petition, but affirm as
to the trial court’s interpretation of the divorce decree. Reversed in part, affirmed in part, and
remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in
Part; Affirmed in Part; and Remanded
J. S TEVEN S TAFFORD, P.J., W.S., delivered the opinion of the Court, in which A RNOLD B.
G OLDIN, J., and B RANDON O. G IBSON, J., joined.
Matthew R. Macaw, Shalini Bhatia, and George Michael Casey, Jr., Memphis, Tennessee,
for the appellant, William F. Young Jr.
Mitzi C. Johnson, Collierville, Tennessee, for the appellee, Josephine Whitthorne Young.
OPINION
Background
The parties, Josephine Whitthorne Young (“Wife”) and William F. Young, Jr.
(“Husband”), were divorced in 2000 after an approximately thirty-three year marriage. Wife
filed a complaint for divorce in Division 8 of the Shelby County Circuit Court on October
25, 1999. When Husband failed to timely respond to the complaint, the trial court, Judge
D’Army Bailey, entered a default judgment against Husband on January 21, 2000. Although
Husband moved to set aside the default judgment, the trial court denied Husband’s request
and entered a Final Decree of Divorce, entered nunc pro tunc to May 3, 2000. Husband’s and
Wife’s assets were generally equally divided in the Final Decree of Divorce, and Wife was
awarded multiple forms of alimony, including alimony in futuro of $500.00 per month, and
alimony in solido to pay some of Wife’s expenses. In addition, the Final Decree of Divorce
included the following provisions:
10. As a division of marital property, the parties shall equally
divide [Husband’s] DROP plan with the City of Memphis . . . ,
as of the date of the entry of this Final Decree of Divorce, and
which plan had a balance as of December 31, 1999, of
$68,657.77 [hereinafter “City of Memphis DROP plan”].
11. As alimony in solido, the parties shall equally divide
[Husband’s] retirement/pension plan with the City of Memphis
. . . , as of the date of the entry of this Final Decree of Divorce,
and to which plan [Husband] has contributed $60,114.96
through March 24, 2000 [hereinafter “City of Memphis
retirement/pension plan”].
12. As alimony in solido, the parties shall equally divide
[Husband’s] deferred compensation plan with the City of
Memphis . . . . entity number 0029, as of the date of the entry of
this Final Decree of Divorce, which plan is managed through
Nationwide Retirement Solutions, Inc., and which had a balance
as of April 19, 2000 of $47,944.95. [Husband] is presently
eligible to access his deferred compensation plan, and as such
shall, within seven (7) days from the entry of this Final Decree
of Divorce, withdraw one-half (½) of the funds in said account
as of the date of the Final Decree of Divorce and shall
immediately pay same to [Wife]. The parties shall be equally
financially responsible for one-half (½) of the penalties charged
against his withdrawal [hereinafter “City of Memphis deferred
compensation plan”].
Husband subsequently filed a motion to set aside the Final Decree of Divorce. The trial court
denied Husband’s motion by order entered October 11, 2000. No appeal was taken of the
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Final Decree of Divorce or the motion to set aside.
On November 17, 2000, Wife filed a criminal and civil contempt petition against
Husband related to his failure to comply with provisions of the Final Decree of Divorce,
specifically with regard to the liquidation of a joint savings account, the payment of Wife’s
attorney’s fees, and the withdrawal of Wife’s portion of Husband’s City of Memphis deferred
compensation plan. The parties entered into a consent order on April 6, 2001, resolving the
contempt petition. In addition, the agreed order stated:
[Husband] is scheduled to retire from the City of
Memphis on April 14, 2001, at which time he shall be eligible
to draw money from his DROP Plan, his pension/retirement plan
and his deferred compensation plan. [Husband] shall execute all
necessary paperwork on or before April 14, 2001, to effectuate
the transfer of that portion of the financial accounts to which
[Wife] is entitled pursuant to paragraphs 10, 11, and 12 of the
Final Decree of Divorce. . . .
Husband retired from his employment as anticipated in April 2001. On July 5, 2001, Husband
filed a motion to modify the Final Decree of Divorce to “terminate and/or reduce” his
obligation to pay both alimony in futuro and alimony in solido in the form of car payments
for the parties’ daughter due to Husband’s decreased income. Husband later withdrew his
Petition to modify the alimony in solido award. Husband’s Petition to terminate his alimony
in futuro obligation was eventually referred to a divorce referee. On February 2, 2002, the
trial court entered an order confirming the recommendation of the divorce referee to
terminate Husband’s alimony in futuro obligation due to Husband’s retirement, over Wife’s
objection. Wife did not appeal the termination of Husband’s alimony in futuro obligation to
this Court.
The parties lived in apparent harmony for over a decade. Husband forwarded one-half
of his City of Memphis retirement/pension plan payments, or $1,617.24, to Wife every month
since the payments began in May 2001. As of the summer of 2014, Husband had paid Wife
over $260,000.00 from the City of Memphis retirement/pension plan. On June 25, 2014,
however, Husband filed a Petition in the original divorce proceeding captioned “Petition for
Declaratory Judgment; To Terminate Alimony in Solido Payments and to Require Wife to
Reimburse Husband.”1 In his Petition, Husband asked the trial court to interpret the Final
1
Husband indicates in his brief that, on advice of counsel, he had first unilaterally terminated his
alimony payments to Wife in April 2014. When Wife threatened to file a contempt action against Husband
(Continued...)
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Decree of Divorce provision related to Husband’s alimony in solido obligation with regard
to his pension from the City of Memphis. Specifically, Husband argued that Wife was only
entitled to one-half of the $60,114.96 that had been contributed to the City of Memphis
retirement/pension plan by Husband prior to the divorce. Because Husband has paid Wife
half of his benefits for over a decade, Husband contended that he was entitled to a
reimbursement of over $220,000.00.
Wife filed a response on August 11, 2014, arguing that Husband was barred from
seeking relief by the doctrine of res judicata. On the same day, Wife filed a motion to
dismiss Husband’s Petition on the ground of res judicata. Specifically, Wife argued that the
issue of Husband’s obligation to pay Wife one-half of all benefits received from the City of
Memphis retirement/pension plan at issue had been litigated not just once, but twice—in the
underlying divorce action and in the parties’ consent order entered on Wife’s petition for
contempt. Because these issues had been previously litigated or could have been litigated
previously, Wife argued that Husband was not entitled to relief on his Petition. Husband filed
a response to Wife’s motion, arguing that his Petition should not be dismissed.
In the intervening years, Judge Bailey retired and was eventually replaced by Judge
Robert S. Weiss. Judge Weiss heard Husband’s Petition and Wife’s Motion to Dismiss on
August 22, 2014.2 On September 5, 2014, the trial court entered an order denying Husband’s
Petition and granting Wife’s Motion to Dismiss. Specifically, the trial court’s order states:
1. The Petition for Declaratory Judgment; To Terminate
Alimony in Solido Payments and to Require Wife to
Reimburse Husband is denied.
2. The original Final Decree of Divorce was entered on
June 16, 2000; Petitioner’s Rule 60 Motion was filed and
disposed of by the Court; and the time to alter or amend
the Final Decree has passed over thirteen (13) years ago.
3. The matter is barred by res judicata in that the Final
Decree of Divorce is a final order.
4. [Husband] has been consistently paying for the past
thirteen (13) years as he understood it to mean that the
(...continued)
shortly thereafter, he resumed paying Wife one-half of the City of Memphis retirement/pension plan proceeds
and filed the instant Petition for a judicial determination of his continued obligation to pay this alimony.
2
In August 2014, Judge Bailey was again elected to a Shelby County Circuit Court judgeship,
this time in Division 3.
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pension was to be divided. The approximate
$60,000[.00] amount included in the Final Decree of
Divorce could not legitimately be argued as the value of
the pension at that time, especially in light of the fact that
over $400,000.00 has been paid out since [Husband’s]
retirement. At the time of [Husband’s] retirement, he
could have elected to receive a lump sum or periodic
payments, and he chose periodic payments. Thus, [Wife]
is entitled to her one-half of the periodic payments.
5. In this Court’s experience, there was no specific amount
included as to the value of the pension as the City of
Memphis either lacked the ability or lacked the desire to
provide said value; and all the City of Memphis provides
is the amount of the contributions made by the employee.
The trial court further ruled that each party was required to pay his or her own attorney’s
fees. Although Wife raised arguments regarding waiver, laches, and estoppel in the trial
court, the trial court declined to rule in favor of Wife on these arguments.3 Husband filed a
timely notice of appeal.
Issues Presented
In his brief, Husband raises three issues:
1. Whether the trial court erred in holding that res judicata
bars Husband’s suit for a declaratory judgment declaring
that he has satisfied his obligation to equally divide the
proceeds from his City of Memphis retirement/pension
plan with Wife through the mechanism of alimony in
solido.
2. Whether the trial court erred in holding that the alimony
in solido provision of the Final Decree of Divorce
requires Husband to continue paying Wife fifty percent
(50%) of his monthly pension.
3. Whether the trial court erred in denying Husband’s claim
for reimbursement of proceeds mistakenly overpaid to
3
Wife does not raise the trial court’s refusal to credit her waiver, laches, or estoppel arguments
as an issue on appeal. Accordingly, we decline to consider these arguments. See Tenn. R. App. 13(b)
(“Review generally will extend only to those issues presented for review.”).
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Wife.
In the posture of appellee, Wife raises two additional issues:
1. Whether the trial court erred in not granting Wife’s
request for attorney’s fees at trial.
2. Whether Wife is entitled to attorney’s fees on appeal.
Discussion
As an initial matter, we must first consider the ruling made by the trial court. From our
review of the trial court’s order, the trial court first determines that Wife’s motion to dismiss
is well-taken because Husband’s Petition is barred by the doctrine of res judicata. If correct,
a ruling that the Petition is barred by res judicata eliminates the need to consider the
substantive merits of the Petition, and instead, subjects the Petition to dismissal. See Levitt
v. City of Oak Ridge, No. E2013-02625-COA-R3-CV, 2014 WL 4458913, at *4, n.1 (Tenn.
Ct. App. Sept. 10, 2014) (affirming the trial court’s dismissal of the plaintiff’s complaint
based on the doctrine of res judicata and indicating that the other issues raised in the appeal
were rendered moot by affirmance on the ground of res judicata). Despite this ruling, the
trial court went on to consider the substance of Husband’s Petition. In his appellate brief,
Husband treats the trial court’s two rulings as independent, alternative bases for denying
Husband relief. Accordingly, we likewise consider the trial court’s findings as alternative
rulings, either of which could serve as a basis for denying Husband relief.
Res Judicata
We begin first with Husband’s contention that the trial court erred in dismissing his
Petition on the basis of res judicata. In considering an appeal from a trial court’s grant of a
motion to dismiss, we take all allegations of fact in the complaint as true and review the trial
courts’ legal conclusions de novo with no presumption of correctness. Tenn R. App. P. 13(d);
Mid-South Industries, Inc. v. Martin Mach. & Tool, Inc., 342 S.W.3d 19, 26–27 (Tenn. Ct.
App. 2010) (citing Owens v. Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996)).
In Lien v. Couch, 993 S.W.2d 53 (Tenn. Ct. App. 1998), this Court discussed various
aspects of the doctrine of res judicata. We stated:
Res judicata is a claim preclusion doctrine that promotes
finality in litigation. See Moulton v. Ford Motor Co., 533
S.W.2d 295, 296 (Tenn. 1976); Jordan v. Johns, 168 Tenn. 525,
536–37, 79 S.W.2d 798, 802 (1935). It bars a second suit
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between the same parties or their privies on the same cause of
action with respect to all the issues which were or could have
been litigated in the former suit. See Richardson v. Tennessee
Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995); Collins v.
Greene County Bank, 916 S.W.2d 941, 945 (Tenn. Ct. App.
1995).
Parties asserting a res judicata defense must demonstrate
that (1) a court of competent jurisdiction rendered the prior
judgment, (2) the prior judgment was final and on the merits, (3)
the same parties or their privies were involved in both
proceedings, and (4) both proceedings involved the same cause
of action. See Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App.
1990). A prior judgment or decree does not prohibit the later
consideration of rights that had not accrued at the time of the
earlier proceeding or the reexamination of the same question
between the same parties when the facts have changed or new
facts have occurred that have altered the parties’ legal rights and
relations. See White v. White, 876 S.W.2d 837, 839–40 (Tenn.
1994).
The principle of claim preclusion prevents parties from
splitting their cause of action and requires parties to raise in a
single lawsuit all the grounds for recovery arising from a single
transaction or series of transactions that can be brought together.
See Bio-Technology Gen. Corp. v. Genentech, Inc., 80 F.3d
1553, 1563 (Fed. Cir. 1996); Hawkins v. Dawn, 208 Tenn. 544,
548, 347 S.W.2d 480, 481–82 (1961); Vance v. Lancaster, 4
Tenn. (3 Hayw.) 130, 132 (1816). The principle is subject to
certain limitations, one of which is that it will not be applied if
the initial forum did not have the power to award the full
measure of relief sought in the later litigation. See Davidson v.
Capuano, 792 F.2d 275, 279 (2d Cir.1986); Carris v. John R.
Thomas & Assocs., P.C., 896 P.2d 522, 529–30 (Okla. 1995);
see also Rose v. Stalcup, 731 S.W.2d 541, 542 (Tenn. Ct. App.
1987) (holding that a subsequent action was not barred because
the initial court did not have jurisdiction over the claim). Thus,
the Restatement of Judgments points out:
The general rule [against relitigation of a
claim] is largely predicated on the assumption that
the jurisdiction in which the first judgment was
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rendered was one which put no formal barriers in
the way of a litigant’s presenting to a court in one
action the entire claim including any theories of
recovery or demands for relief that might have
been available to him under applicable law. When
such formal barriers in fact existed and were
operative against a plaintiff in the first action, it is
unfair to preclude him from a second action in
which he can present those phases of the claim
which he was disabled from presenting in the
first.
Restatement (Second) of Judgments § 26(1)(c) cmt. c (1982).
Lien, 993 S.W.2d at 55–56; see also Ostheimer v. Ostheimer, No. W2002-02676-COA-R3-
CV, 2004 WL 689881, at *5 (Tenn. Ct. App. Mar. 29, 2004) (“[C]laim preclusion bars any
claims that ‘were or could have been litigated’ in a second suit between the same or related
parties involving the same subject matter.”).
Accordingly, in order for res judicata to bar Husband’s Petition, the above four
elements must be met. In this case, there appears to be no dispute that both the Final Decree
of Divorce and the consent order entered by the parties were rendered by a court having
jurisdiction, were decided on the merits and have become final, and involved the same parties
as the present case. Lien, 993 S.W.2d at 55–56 (citing Lee, 790 S.W.2d at 294). As we
perceive it, Husband argues that the prior judgments and this case do not involve the same
subject matter. Specifically, Husband argues that the while the prior adjudications involved
Wife’s entitlement to alimony and Husband’s entitlement to a reduction in other types of
alimony he was obliged to pay under the Final Decree of Divorce, the issue in this case
involves the question of an interpretation of the Final Decree of Divorce as it relates only to
this provision of the Final Decree of Divorce, as well as a determination of whether Husband
has satisfied his obligations under the Final Decree.
We agree that res judicata does not bar Husband’s claim in this case. First, we note
that Husband has never before filed a petition in the trial court regarding interpretation or
termination of his obligation to pay alimony under this specific provision of the Final Decree
of Divorce. Thus, this issue has never been decided by the trial court. This Court was faced
with a similar argument in Chadwell v. Chadwell, No. 03A01-9601-GS-00007, 1996 WL
555228 (Tenn. Ct. App. Oct. 1, 1996). In Chadwell, well after a divorce decree was entered,
a dispute arose between the parties regarding the proper interpretation of the term “stock” as
used in the divorce decree. Id. at *1–*4. The dispositive issue concerned whether former
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wife had rights in a stock ownership plan and investment account by virtue of the provision
of the divorce decree awarding her fifty percent (50%) of “the stock accumulated by [former
husband] at his place of employment.” Id. at *1. Former husband argued that the issue of
whether former wife had rights to this property was res judicata. Id. at *5. The Court of
Appeals rejected former husband’s argument, concluding: “It seems axiomatic that the
issuance of a divorce decree will not be res judicata as to an issue that arises as to the
interpretation of the decree itself.” Id. Although former husband argued that the issue “could
have and should have been litigated when the decree was issued,” the Court concluded that
there was no issue until the dispute arose. Id. Here, the record shows that Husband
terminated his payments to Wife in April 2014. Thereafter, a dispute arose as to whether
Husband was entitled to terminate the payments. Like in Chadwell, only after this dispute
regarding the interpretation of the Final Decree of Divorce arose in 2014 was there an issue
in dispute. Because the issue in dispute did not exist during any of the prior proceedings, it
simply “could [not] have been litigated in the former suit.”Lien, 993 S.W.2d at 55 (citing
Richardson, 913 S.W.2d at 459).
We also discern no error in Husband’s choice to raise this issue as a declaratory
judgment action. “Declaratory judgments may be used to determine marital status and rights
incident thereto[.]” 22A Am. Jur. 2d Declaratory Judgments § 170. This Court was
previously faced with a declaratory judgment action asking the court to interpret a divorce
decree involving the parties. See Clark v. Clark, 620 S.W.2d 536 (Tenn. Ct. App. 1981). The
Court expressed no rule that declaratory judgment actions were not a proper vehicle for
seeking a judicial interpretation of a divorce decree, nor did the Court indicate that such an
action would be barred by the doctrine of res judicata. Id. at 537–38. It is well-settled that
the court has continuing jurisdiction to enforce its decrees. See State ex rel. Stall v. City of
Knoxville, 365 S.W.2d 433, 435 (Tenn. 1963) (“The power to enforce its final judgments is
inherent in all courts, since without this power the courts themselves would be unable to
effect the ends for which they were designed.”). This maxim holds true in divorce cases
wherein one party seeks a judicial interpretation of the divorce decree:
While a trial court generally does not [have the] authority to
alter or amend a divorce judgment, it does have the inherent and
continuing authority to construe and clarify its judgment when
that judgment is ambiguous. The interpretation of a divorce
decree that is ambiguous or uncertain on its face and, because of
its language, is of doubtful meaning or open to diverse
constructions, may, therefore, be clarified by the tribunal that
ordered it. Trial courts generally have wide discretion in
interpreting divorce judgments.
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27A C.J.S. Divorce § 456 (2014) (footnotes omitted).
Although neither party cites any cases in which res judicata has been cited as a bar
to a subsequent action to interpret a divorce decree, our research has revealed one Tennessee
Supreme Court case that implicitly rejects this argument, Johnson v. Johnson, 37 S.W.3d
892 (Tenn. 2001), involving whether a non-modifiable property division was subject to
further judicial action. In Johnson, former husband unilaterally chose to receive a portion
of his military retirement pay as disability benefits. Id. at 894. Former husband thereafter
reduced his payments to former wife proportionally with the reduction in his retirement
benefits. Id. Former wife filed a petition to modify the alimony provision of the divorce
decree. Id. The Tennessee Supreme Court first concluded that the obligation at issue
constituted property division, rather than alimony. The Tennessee Supreme Court noted that
while the division of marital property is not subject to modification based on changed
circumstances, former’s wife petition actually involved enforcement of the original petition,
rather than modification. Id. at 895–96. The Tennessee Supreme Court, therefore, proceeded
to consider her argument, implicitly ruling that the courts had continuing authority to enforce
the terms of a marital property provision in a divorce decree, even with regard to a provision
that is non-modifiable.
The same is true in this case. Here, Husband does not seek a modification of his
obligation to pay Wife, but merely a determination that he has fulfilled all that is required
under the divorce decree. The trial court had continuing jurisdiction and authority to consider
this issue. As such, while his request may ultimately be denied because: (1) Husband’s
obligation is non-modifiable; and (2) Husband’s obligation under the Final Decree of
Divorce has not been extinguished, the trial court was not barred by the doctrine of res
judicata from considering his Petition to interpret and enforce the Final Decree of Divorce.
Based on the forgoing, we hold that the trial court erred in finding that res judicata bars
consideration of Husband’s Petition.
Interpretation of the Final Decree of Divorce
Husband next argues that the trial court erred in interpreting the Final Decree of
Divorce as requiring Husband to pay alimony in solido to Wife of one-half of his retirement
pay without providing a definite duration for that award. This question requires us to interpret
the language in a judgment. “The interpretation of a judgment is a question of law.” Pruitt
v. Pruitt, 293 S.W.3d 537, 544 (Tenn. Ct. App. 2008) (citation omitted). Accordingly, our
review is de novo with no presumption of correctness. Barnes v. Barnes, 193 S.W.3d 495,
498 (Tenn. 2006). Judgments are to be construed like other written instruments, Konvalinka
v. Chattanooga-Hamilton Co. Hosp. Authority, 249 S.W.3d 346, 356 n.19 (Tenn. 2008), the
determinative factor being the intention of the court as gathered from all parts of the
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judgment. Stidham v. Fickle Heirs, 643 S.W.2d 324, 328 (Tenn. 1982). Such construction
should be given to a judgment as will give force and effect to every word of it, if possible,
and make its several parts consistent, effective and reasonable. Blue Cross-Blue Shield of
Tennessee v. Eddins, 516 S.W.2d 76, 78 (Tenn. 1974); Branch v. Branch, 249 S.W.2d 581,
582–83 (Tenn. Ct. App. 1952). Generally, trial courts are “in the best position to interpret and
construe [their] own orders, even when a trial judge has no independent memory of the
proceedings in a cause of action.” Sharp v. Stevenson, No. W2009-00096-COA-R3-CV,
2010 WL 786006, at *5 (Tenn. Ct. App. Mar. 10, 2010) (citing Richardson v. Richardson,
969 S.W.2d 931, 935 (Tenn. Ct. App. 1997)). However, in this case, the trial judge who
entered the Final Decree of Divorce is not the same trial judge who considered Husband’s
instant Petition.
As previously discussed, the Final Decree of Divorce entered by the trial court
required Husband to pay Wife “[a]s alimony in solido” one-half of Husband’s
“retirement/pension plan with the City of Memphis . . . , as of the date of the entry of this
Final Decree of Divorce, and to which plan [Husband] has contributed $60,114.96 through
March 24, 2000.” Husband only argues that he was merely required to pay Wife one-half of
his contributions to the City of Memphis retirement/pension plan, or $30,057.48. Because
Husband has paid far in excess of that amount, Husband argues that the trial court erred in
not ruling that his alimony obligation was extinguished.
Tennessee law recognizes four distinct classes of alimony: (1) alimony in futuro, (2)
alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony. Tenn. Code Ann.
§ 36-5-121(d)(1). The dispute in this case concerns alimony in solido:
The second type of support, alimony in solido, is . . . a
form of long-term support. The total amount of alimony in
solido is set on the date of the divorce decree and is either paid
in a lump sum payment of cash or property, or paid in
installments for a definite term. Tenn. Code Ann. § 36-5-
121(h)(1); Broadbent [v. Broadbent], 211 S.W.3d [216,] 222
[(Tenn. 2006)] (“Alimony in solido consists of a definite sum of
money that is paid in a lump sum or in installments over a
definite period of time.”). “A typical purpose of such an award
would be to adjust the distribution of the parties' marital
property.” Burlew [v. Burlew], 40 S.W.3d [465,]471 [(Tenn.
2001)]. Alimony in solido “may be awarded in lieu of or in
addition to any other alimony award, in order to provide support,
including attorney fees, where appropriate.” Tenn. Code Ann. §
36-5-121(d)(5). Unlike alimony in futuro, the other form of
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long-term support, alimony in solido is considered a final
judgment, “not modifiable, except by agreement of the parties,”
and does not terminate upon the death or remarriage of the
recipient or payor spouse. Tenn. Code Ann. § 36-5-
121(h)(2)–(3); see Riggs [v. Riggs], 250 S.W.3d [453,] 456 n.
3 [(Tenn. Ct. App. 2007)].
Gonsewski v. Gonsewski, 350 S.W.3d 99, 108 (Tenn. 2011) (footnote omitted).
Here, the trial court interpreted the alimony in solido provision as requiring Husband
to remit one-half of his entire pension with the City of Memphis to Wife. Husband argues
that this interpretation ignores both the statutory requirements of alimony in solido as well
as the plain language of the alimony provision. First, Husband notes that Tennessee law
provides that alimony in solido “is an award of a definite sum of alimony and ‘may be paid
in installments provided the payments are ordered over a definite period of time and the sum
of the alimony to be paid is ascertainable when awarded.’” Burlew, 40 S.W.3d at 471
(emphasis added) (quoting Waddey v. Waddey, 6 S.W.3d 230, 232 (Tenn. 1999)). Husband
argues that the only interpretation of the language of the alimony provision that includes a
sum that is ascertainable at the time the Final Decree of Divorce was entered requires the
court to find that Husband was only required to pay one-half of Husband’s stated
contributions to the City of Memphis retirement/pension plan.
We note that Husband raises no argument in this Court that the trial court erred in
interpreting the alimony at issue in this case as alimony in solido, rather than as alimony in
futuro or a non-alimony property division, due to the alimony provision’s indefinite amount
and duration. Indeed, in his brief, Husband concedes that the issue of whether “Husband
owes alimony in solido to Wife for her interest in the City of Memphis retirement/pension
plan is res judicata.” Instead, Husband only argues that the $60,114.96 figure contained in
the alimony provision provides the definite amount and duration for the payments. Thus, any
argument that the alimony provision, as written, cannot be classified as alimony in solido is
waived.4
4
Although this issue was not raised by Husband, we note that there is some authority that
conditioning the payment of alimony on the lifetime of the obligor does not defeat the trial court’s intention
to award a party alimony in solido. See Towner v. Towner, 858 S.W.2d 888, 890 (Tenn.1993) (“[T]he mere
fact that the duration of the specified monthly payments is determined by [the obligor’s] life does not
necessarily mean that the provision is [not alimony in solido, and therefore,] subject to modification.”).
Instead, the Tennessee Supreme Court has held that these types of alimony awards are more akin to property
settlements that are not subject to modification based on changed circumstances. See id. at 891 (“The
agreement in this case, considered in light of all the circumstances, is essentially a property settlement
(Continued...)
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We respectfully disagree with Husband’s interpretation of the alimony provision at
issue. As previously discussed, in interpreting an order of the court, the “determinative
factor” is the “intention of the court as gathered from all parts of the judgment.” Pruitt v.
Pruitt, 293 S.W.3d 537, 543 (Tenn. Ct. App. 2008). “The construction of a judgment should
give force and effect to every word of it, if possible, and make all of the parts consistent,
effective, and reasonable.” Id. at 545. Here, the trial court’s intention was clear from the face
of the Final Decree of Divorce—to provide Wife with her marital interest in the bulk of the
marital property, including Husband’s various City of Memphis retirement plans.
In this case, several facts appear to be undisputed. First, the parties were married for
approximately thirty-three years. Second, Husband worked for the City of Memphis at the
time of the parties’ divorce and, according to his brief, “during the length of the marriage.”
Consequently, even Husband concedes in his brief that the “the [City of Memphis
retirement/pension] plan constituted a marital asset.” As such, Wife was clearly entitled to
an equitable division of this asset in the divorce. See Cohen v. Cohen, 937 S.W.2d 823, 828
(Tenn. 1996) (portion of retirement benefits that accrues during marriage constitutes marital
property subject to division).5 Trial courts have “wide latitude in fashioning an equitable
division of marital property.” Altman v. Altman, 181 S.W.3d 676, 683 (Tenn. Ct. App.
2005). An award of alimony in solido often serves the purpose of “adjust[ing] the
(...continued)
agreement, rather than an order of support.”); see also Johnson, 37 S.W.3d at 895 (concluding that “the
payments made to [former wife] pursuant to the MDA were periodic distributions of marital property rather
than alimony”). In addition, while Courts have held that determining the nature of an alimony award is
important when the issue is a requested modification of the award and the award contains no express
designation as to the type of alimony awarded, see Averitte v. Averitte, No. M2012-00738-COA-R3-CV,
2013 WL 357602, at *2 (Tenn. Ct. App. Jan 29, 2013) (“Discerning the nature of the award can [ ] be
challenging if the language of the decree is not sufficiently descriptive . . . .”), this Court in Schmidt v.
Schmidt, No. M2004-01350-COA-R3-CV, 2005 WL 2240960 (Tenn. Ct. App. Sept. 15, 2005), considered
a number of oft-cited alimony Opinions, concluding “[i]n all of these cases, the presence or absence of
contingencies did not change the express description of the form of alimony awarded.” Schmidt, 2005 WL
2240960, at *6. In this case, the trial court clearly designated the award as an award of alimony in solido.
Husband filed no appeal of that decision at the time it was entered, nor does he argue that the trial court mis-
classified the alimony award at issue. Accordingly, we will not consider whether this was the proper form
for an award of alimony in solido.
5
From the parties’ briefs, it appears that Husband may have worked for the City of Memphis
prior to the parties’ marriage. Thus, some of the pension may have been acquired prior to the marriage,
and therefore, separate property. Husband, however, does not raise any issue regarding the trial court’s
finding that the entirety of the City of Memphis retirement/pension plan acquired prior to the parties’ divorce
constitutes a marital asset. As such, we assume any value in the retirement plan acquired prior to the divorce
was marital property subject to division.
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distribution of the parties’ marital property.” Burlew, 40 S.W.3d at 471. While an equitable
division of marital property does not always mean an equal division, see Robertson v.
Robertson, 76 S.W.3d 337, 341 (Tenn. 2002), other provisions of the Final Decree of
Divorce illustrate the trial court’s intent to equally divide the bulk of the parties’ marital
assets, including joint accounts, stocks, bonds, certificates of deposits, a DROP plan with the
City of Memphis, and a deferred compensation plan with the City of Memphis. Thus, it is
reasonable to conclude that the trial court’s intent was to also fashion an equal division of
the City of Memphis retirement/pension plan.
Indeed, the alimony provision at issue specifically states that the parties “shall equally
divide” the plan, “as of the date of the entry of th[e] Final Decree of Divorce.” This language
clearly indicates that Wife is entitled to receive one-half of the value of the plan, as of the
date of the divorce. It is undisputed that at the time Husband filed the instant Petition,
Husband had received over $500,000.00 from the plan at issue. Husband worked
approximately one year after the entry of the Final Decree of Divorce. It is unreasonable to
conclude that the plan increased in value by over $400,000.00 in just thirteen months, when
Husband worked for the City of Memphis for over thirty-three years. Instead, the only
reasonable conclusion to be drawn is that while Husband may have only contributed
$60,114.96 to the City of Memphis retirement/pension plan by the time of the divorce, the
City of Memphis retirement/pension plan had a value far greater. Indeed, Wife testified in
an affidavit filed in the trial court that the $60,114.96 figure represented “the amount which
Husband paid into the pension plan,” rather than the value of the City of Memphis
retirement/pension plan at the time of the parties’ divorce. Husband points to no evidence in
the record disputing Wife’s testimony that the $60,114.96 does not accurately reflect the
value of the City of Memphis retirement/pension plan at the time the Final Decree of Divorce
was entered. Because the trial court’s clear intent was to use the alimony in solido provision
to equally divide the parties’ marital property, we cannot agree with Husband that the trial
court intended Wife to receive only $30,057.48, an amount that represents less than twelve
percent (12%) of the amount that Husband has received from the City of Memphis
retirement/pension plan as of the summer of 2014. Thus, we cannot conclude that the
inclusion of the $60,114.96 figure in the alimony in solido provision was intended to provide
a cap on Husband’s obligation to pay Wife from the proceeds of his City of Memphis
retirement/pension plan. Instead, it appears that the purpose of the $60,114.96 figure was
to identify the City of Memphis retirement/pension plan at issue, and distinguish it from
Husband’s two other City of Memphis accounts, his DROP account and his deferred
compensation account. Further, the trial court’s decision to distribute this property through
alimony rather than a property division is explained by Wife’s affidavit—that neither the City
of Memphis retirement/pension plan nor the deferred compensation plan “were . . . subject
to a Qualified Domestic Relations Order” and therefore, “the payments had to come from
[Husband] as they could not come from the City of Memphis directly.” The record contains
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no transcripts from the original trial, and Husband offers no evidence to dispute Wife’s
explanation for the trial court’s treatment of this property. As such, we can only credit Wife’s
testimony that the trial court treated the City of Memphis retirement/pension plan as alimony
in solido due to limitations with how the proceeds could be distributed.
Based on the forgoing, we conclude that the trial court did not err in interpreting the
Final Decree of Divorce as requiring Husband to remit to Wife one-half of the total value of
the City of Memphis retirement/pension plan, as of the date of the entry of the Final Decree
of Divorce. Husband was, therefore, not entitled to terminate his payments once Wife
received one-half of Husband’s total contributions to the plan. In addition, Husband is not
entitled to reimbursement of any overpayment beyond $30,057.48. Although the Final Decree
of Divorce clearly states that Wife is only entitled to that portion of the value of the City of
Memphis retirement/pension plan that accrued prior to the divorce, Husband raises no issue
regarding this fact on appeal, nor did Husband’s Petition in the trial court seek a
determination of when Husband’s alimony obligation would be extinguished based on this
fact. Accordingly, we decline to address that issue at this time.
Attorney’s Fees
Wife next argues the trial court erred in failing to award her attorney’s fees in the
defense of this action. Wife relies on Tennessee Code Annotated Section 36-5-103(c) to
support her request for attorney’s fees. As explained by this Court in Owens v. Owens, No.
M2012-01186-COA-R3-CV, 2013 WL 3964793 (Tenn. Ct. App. July 30, 2013) perm. app.
denied (Tenn. Nov. 13, 2013):
Reasonable fees may be awarded pursuant to § 36-5-
103(c) in actions to enforce a decree for alimony, which has
been interpreted as including the situation where an alimony
recipient is forced to defend an action to reduce or terminate that
alimony. Evans v. Evans, [No. M2002-02947-COA-R3-CV,]
2004 WL 1882586, at *13 (Tenn. Ct. App. Aug. 23, 2004). In
addition, a court may award a former spouse attorney's fees as
alimony in solido pursuant to § 36–5–101 in a modification or
alimony proceeding. See Evans, 2004 WL 1882586, at *15
(“ample authority exists to authorize a court to award fees in a
modification proceeding on the same basis, and according to the
same principles, as a fee award is made in the divorce
proceeding and initial award under Tenn. Code Ann. § 36-5-
101”).
An award of attorney’s fees is within the sound discretion
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of the trial court, regardless of the legal authority for the award,
and will not be reversed on appeal if that discretion is not
abused. Yount v. Yount, 91 S.W.3d 777, 783 (Tenn. Ct. App.
2002); Evans, 2004 WL 1882586, at *17 (Tenn. Ct. App. Aug.
23, 2004). A trial court abuses its discretion when it applies an
incorrect legal standard, or reaches a decision that is not logical,
bases its decision on a clearly erroneous assessment of the
evidence, or uses reasoning that causes an injustice to the
complaining party. Bailey v. Blount Cnty. Bd. of Educ., 303
S.W.3d 216, 237 (Tenn.2010) (citing State v. Banks, 271
S.W.3d 90, 116 (Tenn. 2008)).
Owens, 2013 WL 3964793, at *6. Considering the record as whole, we cannot conclude that
the trial court abused its discretion in requiring both parties to pay their respective attorney’s
fees. The trial court’s denial of Wife’s request for attorney’s fees is, therefore, affirmed.
Wife also seeks her attorney’s fees on appeal pursuant to the same statutory authority.
“Whether to award attorney’s fees on appeal is a matter within the sole discretion of this
Court.” Hill v. Hill, No. M2006-02753-COA-R3-CV, 2007 WL 4404097, at *6 (Tenn. Ct.
App. Dec.17, 2007) (citing Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App .1995)).
In determining whether an award of fees on appeal is appropriate, we consider “the ability
of the requesting party to pay the accrued fees, the requesting party’s success in the appeal,
whether the requesting party sought the appeal in good faith, and any other equitable factor
that need be considered.” Hill, 2007 WL 4404097, at *6 (citing Dulin v. Dulin, 2003 WL
22071454, at * 10 (Tenn. Ct. App. Sept. 3, 2003)). In this case, the record contains little
evidence of Wife’s ability to pay the requested fees. In addition, while Wife ultimately
prevailed in retaining her alimony payments, Wife did not prevail on her argument that
Husband’s Petition was barred by the doctrine of res judicata, which issue constituted a good
faith basis for Husband to appeal the trial court’s ruling. Under these circumstances, we
exercise our discretion to decline Wife’s request for attorney’s fees on appeal.
Conclusion
The judgment of the Circuit Court of Shelby County is reversed in part and affirmed
in part. Costs of this appeal are taxed one-half to Appellant William F. Young, Jr., and his
surety, and one-half to Appellee Josephine Whitthorne Young, for all of which execution
may issue if necessary. This cause is remanded to the trial court for the collection of costs
and all further proceedings as may be necessary and are consistent with this Opinion.
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_________________________________
J. STEVEN STAFFORD, JUDGE
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