Sheila Long Pless v. Robert Eugene Pless, Jr. ( 2019 )

09/30/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 10, 2019 Session
SHEILA LONG PLESS v. ROBERT EUGENE PLESS, JR.
Appeal from the Chancery Court for Williamson County
No. 45152 Joseph A. Woodruff, Judge
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No. M2018-02047-COA-R3-CV
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In this divorce, Wife appeals the trial court’s decision to deny her alimony
notwithstanding a previously executed separation agreement that provided a non-
modifiable award of alimony in futuro. Wife also appeals the trial court’s denial of a
arrearage judgment for school and extracurricular expenses under the separation
agreement. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
Thomas F. Bloom, Nashville, Tennessee, for the appellant, Sheila Long Pless.
C. Diane Crosier and Marissa L. Walters, Franklin, Tennessee, for the appellee, Robert
Eugene Pless, Jr.
OPINION
BACKGROUND
Robert Eugene Pless, Jr. (“Husband”) and Shelia Long Pless (“Wife”) were
married in June 1987. Husband and Wife had three children together, all of whom
reached adulthood before the present divorce matter commenced. During most of their
marriage, Husband worked full-time while Wife home-schooled their three children and
did not work outside the home.
Wife filed a Complaint for Legal Separation against Husband on January 14, 2009
in Williamson County Chancery Court (“the trial court”). Wife sought the legal
separation on grounds of irreconcilable differences, inappropriate marital conduct, and
adultery. On February 20, 2009, Husband and Wife filed a Final Order of Separation that
incorporated a parenting plan and a previously agreed-to Separation Agreement (“the
Separation Agreement” or “the Agreement”) signed on January 9, 2009. The Chancery
Court entered the agreed order on March 10, 2009 and granted the legal separation to
Wife on the sole ground of irreconcilable differences. The Separation Agreement was
incorporated into the Final Order of Separation. Wife was represented by counsel in the
separation, while Husband represented himself.
The terms of the Separation Agreement outlined the future financial obligations
for both spouses. The Separation Agreement required Husband “to pay $2,000.00 per
month to Wife for alimony in futuro. Said alimony shall not be modifiable and shall
terminate only upon the death of Wife. The alimony shall be considered taxable income
to Wife and shall be tax deductible to Husband.” Further, the Agreement stated that “[t]he
parties expressly understand and agree that this Agreement is intended to be a complete
and final settlement of all property rights and support rights and obligations of the
respective parties hereto and shall constitute a discharge from all claims arising out of
their marital relationship except as provided herein.” The Separation Agreement did not
mention a future divorce or discuss the viability of the Separation Agreement if either
spouse sought a divorce.
Additionally, the terms of the parenting plan incorporated into the separation order
required Husband to pay $984.00 monthly to Wife as child support. Further, Husband
agreed to “pay home school expenses, including, but not limited to, books, classes,
internet and computer expenses, as well as extra-curricular expenses such as band, flute,
piano, theatre, swimming.” Husband also agreed “to pay all typical and ordinary college
expenses, to include at a minimum tuition, room and board, and supplies, for the children
based on then current tuition rates for an in-state public school in the state that the child
resides at the time.” Husband also agreed to maintain health insurance for the Wife and
their children and maintain a life insurance policy with Wife as the primary beneficiary.
Any uncovered health costs for the children would be split pro rata between the spouses,
with 83% paid by Husband and 17% by Wife.
On April 26, 2016, seven years after the order of legal separation, Husband filed a
Complaint for Divorce, again in Williamson County. In the divorce complaint, Husband
sought a divorce on grounds of irreconcilable differences and a separation of more than
two years. The Separation Agreement was not mentioned in the divorce complaint. On
May 31, 2016, Husband also filed a petition for modification or termination of alimony in
the legal separation case, which remained separate from the divorce case. Due to Wife’s
employment and Husband’s financial circumstances, Husband alleged a substantial and
material change in circumstances that would allow the court to limit or terminate
Husband’s alimony obligations.
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Wife responded to the divorce complaint and petition to modify or terminate
alimony with separate filings. In her answer to the divorce complaint filed on June 15,
2016, Wife argued that a final disposition of property occurred through the legal
separation and requested a divorce on a ground of two years of separation “as no
reconciliation has occurred.” She further requested that Husband be responsible for all
attorney fees and court costs related to the matter.
On July 7, 2016, Wife filed a motion for summary judgment in response to
Husband’s petition to modify or terminate alimony. Wife argued that Husband’s petition
should be dismissed and that she was entitled to judgment as a matter of law, as the final
order for the legal separation “specifically and unequivocally states that the alimony
ordered to be paid by Husband to Wife is not modifiable.” Husband filed a response
opposing summary judgment in September 2016, arguing that the alimony was
modifiable as alimony in futuro and that he did not seek the advice of counsel when
signing the Separation Agreement. On April 17, 2017, the trial court denied Wife’s
motion for summary judgment, stating that the legal separation order did not contain
findings regarding “the total property owned by the parties, the parties’ incomes, or
whether the Court intended the Final Order of Separation to be a final division of the
property.”
While the motion for summary judgment was pending, Wife filed a counter-
petition to assess Husband’s outstanding obligations in the divorce action on March 1,
2017. Wife argued that Husband owed Wife and their children a combined $107,461.62
under the terms of the Separation Agreement for unpaid homeschool, college, and
medical expenses. Wife demanded that Husband pay $1,500 a month, called for specific
performance to pay for the remaining child’s college education, and sought a judgment
entered against Husband for the college costs of each child. In the termination of alimony
action, Wife later amended her counter-petition to request that the trial court grant her a
divorce on the single ground of separation and incorporate the Separation Agreement and
remaining elements of the parenting plan into a final divorce decree. In a response to the
counter-petition, Husband sought credit for his payments “over and above the child
support obligation” and argued that Wife’s allegations of outstanding obligations were
not itemized and outside the scope of the Separation Agreement.
When the trial court issued its memorandum and order regarding Wife’s motion
for summary judgment, it advised the parties to “strongly consider” merging the
separation and divorce cases into a single matter. An agreed order to consolidate the
matters was entered on July 30, 2018. A trial on the combined matter was held on August
31, 2018.
At trial before a different trial judge than the one that heard the separation
proceeding, Husband and Wife testified over the disputed issues of alimony and
arrearages. The spouses stipulated that Wife should be granted a divorce based on the
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parties’ separation and that the terms of the Separation Agreement regarding property
division should be incorporated into the divorce decree, with the exception of limited
tangible personal property that Husband believed was separate property. Two claims in
Wife’s counter-petition regarding college costs were also voluntarily dismissed without
prejudice before testimony began. At trial, Wife did not object to Husband entering the
basement of the marital home to search for and retrieve specific items of tangible
personal property that belonged to him. The trial court therefore ordered that Husband be
allowed to enter the basement to search for the listed tangible personal property.
Concerning alimony, Husband testified that his monthly payments to Wife
continued to have an overwhelming effect on his living and financial circumstances.
After the legal separation was entered, Husband testified that he moved away from the
marital residence. Husband stated that he lived in his minivan for five months before
moving between small bedrooms and apartments for several years. He continued to work
during the separation and placed his income into the marital bank account. In 2011,
Husband moved to Memphis for a higher-paying job and rented small apartments in the
city. For a limited period of time, he rented an apartment where he and his son could live
together after his son graduated college. Husband next moved to Fayetteville, Arkansas in
2015, where he worked as Director of Facilities at the Walton Arts Center when the
present case was heard. While he earned approximately $77,000.00 annually as Director
of Facilities, Husband worked a second job to help meet his support obligations under the
Separation Agreement. Husband also earns $966.00 each year for his work at an annual
music festival in Memphis. Husband continued to live in a one-bedroom apartment in
Fayetteville, Arkansas and worked to limit his living expenses to continue to make
alimony payments. Since the separation was granted, Husband paid Wife $1,000.00 every
two weeks for alimony and $500.00 every two weeks for child support when child
support was owed. Additionally, Husband continued to pay child support through 2017,
years after each of the family’s children reached the age of majority. The $1,000.00 per
month in child support, split over biweekly payments, was $16.00 more than Husband
was required to pay each month and led to several “extra” payments. Husband supplied
additional funds to Wife, including $200.00 each month to pay for an outstanding tax
obligation. Husband also paid for 100% of the children’s healthcare costs, above and
beyond the pro rata requirements outlined in the Separation Agreement. During the
period of separation, Husband paid Wife a total of $71,200.00 above his alimony and
child support obligations to Wife. The money was provided to Wife with occasional
instructions for its use, including paying for college, medical bills, or previous
investments or tax obligations.
Husband stated that, despite his salary, he has lived in spare bedrooms and small
apartments for years after the separation so he could consistently pay alimony and child
support. Evidence was produced concerning Husband’s income and payments regarding
alimony, child support, and other family contributions that were required and not required
under the Separation Agreement. While Husband stated that he voluntarily signed the
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Agreement without fraud or duress, he said both spouses “anticipated a reconciliation”
when they entered into the Separation Agreement and later attended counseling
periodically.
After the separation took effect, Wife testified that she remained at home to
homeschool the family’s remaining children. As the youngest child finished high school
and enrolled in college, Wife re-entered the workforce and took a job with The Home
Depot. When the divorce trial occurred, Wife made less than $13.00 an hour as head
cashier. She also possesses more than $400,000.00 she received through a wrongful death
claim that has largely remained in savings. Wife stated that she is averse to financial risk
after she lost around $18,000.00 from an investment that Husband encouraged her to
make. Wife owned the marital home in Brentwood (“the marital home”), though she
obtained full title to the home before the legal separation through a quitclaim deed signed
by Husband.
Wife testified that she believed the Separation Agreement granted her permanent
alimony from Husband “indefinitely[.]” Wife considered the Separation Agreement “an
agreement between me and my husband and he agreed to it and it’s also was necessary
for me to live. Most of my living expenses are used from that.” Wife’s testimony
revealed several discrepancies between her financial obligations as described in evidence
and with her testimony itself. Wife further testified at length about how she believed
Husband had lied and withheld money from her while she was trying to keep their family
afloat. Wife testified that she perceived the approximately $71,000.00 in voluntary
payments was “just to help out with living expenses” and should not be credited against
any financial obligations under the Settlement Agreement. Wife also discussed her
regular expenses, but her testimony did not correlate with the expenses listed in her trial
exhibits. The trial court found that Wife’s testimony concerning her expenses was not
reliable.
After testimony and the filing of post-trial briefs, the trial court granted the Wife a
divorce based on the legal separation of more than two years. However, the trial court
analyzed alimony under the state’s statutory framework without considering the terms of
the Separation Agreement. Based on the parties’ current financial situations and the
statutory factors concerning alimony, the trial court did not grant spousal support to either
party. Wife’s claims for money judgments against Husband were also dismissed. Rather,
the trial court found that Husband’s payments exceeded the funds Wife claimed were
owed for medical and extracurricular homeschool expenses. Wife timely appealed the
judgment to this Court.
ISSUES PRESENTED
Wife presented the following issues on appeal, which this Court slightly restates as
follows:
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1. Whether the trial court erred in failing to enforce the alimony provision of
the Separation Agreement as a contract between the parties.
2. Whether the trial court erred in failing to incorporate the Separation
Agreement into the final divorce decree and failing to find that a material change in
circumstances warranted a modification of the Husband’s alimony obligation, or
alternatively, whether the trial court abused its discretion by not granting alimony to Wife
after a de novo review.
3. Whether the evidence preponderates against the trial court’s decision that
the Husband’s voluntary payments to Wife during the separation were intended or should
be credited to satisfy the Husband’s financial obligations specified in the Separation
Agreement.
4. Whether the trial court abused its discretion in not awarding attorney’s fees
to Wife.
5. Whether Wife should be awarded attorney’s fees incurred on appeal.
In the posture of Appellee, Husband also seeks an award of attorney’s fees incurred in
this appeal.
DISCUSSION
I. Alimony
The central dispute in this case involves whether a Separation Agreement
containing a long-term, non-modifiable alimony obligation should be enforced upon the
parties’ subsequent divorce. Wife contends that the Separation Agreement is an
unambiguous contract that should be enforced notwithstanding the change in status from
legal separation to absolute divorce. Husband counters that Tennessee’s divorce statutes
and interpreting caselaw mandate a hearing to determine entitlement to alimony even
where a contract had been made. Because no such hearing occurred in the separation
proceeding, Husband contends that the trial court was well within its discretion under
both Tennessee caselaw and the separation statute to reconsider the alimony award at the
time of the divorce. Thus, the dispute in this case involves the intersection of contract law
and the legal separation statute.
To the extent that the obligations contained therein retain their contractual nature,
separation agreements, like marital dissolution agreements, are enforced like contracts.
Lee v. Lee, No. M2014-01911-COA-R3-CV, 2017 WL 1205913, at *4 (Tenn. Ct. App.
Mar. 31, 2017). Issues that retain their contractual nature include “agreement[s] between
a husband and wife on matters outside the scope of the legal duty of child support during
minority, or alimony in futuro over which the court also has continuing statutory power
to modify[.]” Blackburn v. Blackburn, 526 S.W.2d 463, 465 (Tenn. 1975). Issues of
contract interpretation are reviewed de novo with no presumption of correctness. Barnes
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v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006) (involving a marital dissolution
agreement). The goal of our review is therefore “to ascertain and to give effect to the
parties’ intentions.” Long v. McAllister-Long, 221 S.W.3d 1, 9 (Tenn. Ct. App. 2006)
(citing Ahern v. Ahern, 15 S.W.3d 73, 81 (Tenn. 2000)). We therefore begin our review
with the language of the agreement, considering each provision in light of the agreement
as a whole, giving the language its natural and ordinary language. Id. We construe the
agreement fairly and reasonably as written without rewriting the contract. Id. (citing
Honeycutt v. Honeycutt, 152 S.W.3d 556, 561–62 (Tenn. Ct. App. 2003)).
Divorce, however, is not a creature solely of contract between spouses. Rather,
this Court has explained that “[a] divorce action is really a triangular proceeding where in
addition to the parties the State through the court is a quasi party.” Anderson v.
Anderson, 810 S.W.2d 153, 155 (Tenn. Ct. App. 1991) (quoting Osborne v. Osborne,
197 S.W.2d 234, 236 (Tenn. Ct. App. 1946)). “In its role as a ‘quasi party’ to divorce
proceedings, the court must examine each marital dissolution agreement and make an
independent determination that it is equitable and legally sufficient” pursuant to the
mandates of the applicable divorce statutes. Gibbs v. Gibbs, No. E2015-01362-COA-R3-
CV, 2016 WL 4697433, at *4 (Tenn. Ct. App. Sept. 7, 2016) (citing Tenn. Code Ann. §
36-4-103(b) (“No divorce shall be granted on the ground of irreconcilable differences
unless the court affirmatively finds in its decree that the parties have made adequate and
sufficient provision by written agreement . . . .”)). Thus, even where the parties have
entered into a contract concerning alimony, “such agreements are merely evidential in
value and may be followed by the court in its award of alimony—they should be given
great consideration but are subject to close scrutiny by the court.” Osborne, 197 S.W.2d
at 236.
As such, we must also consider the statutes applicable to both legal separations
and divorces. Like contract interpretation, statutory construction presents a question of
law, which this Court reviews de novo with no presumption of correctness. In re Estate
of Starkey, 556 S.W.3d 811, 815 (Tenn. Ct. App. 2018) (citing Davis ex rel. Davis v.
Ibach, 465 S.W.3d 570, 573 (Tenn. 2015)). As the Tennessee Supreme Court previously
explained,
Our duty in construing statutes is to ascertain and give effect to the
intention and purpose of the legislature. “‘Legislative intent is to be
ascertained whenever possible from the natural and ordinary meaning of the
language used, without forced or subtle construction that would limit or
extend the meaning of the language.’” When the statutory language is clear
and unambiguous, we must apply its plain meaning in its normal and
accepted use, without a forced interpretation that would limit or expand the
statute’s application. Where an ambiguity exists, we must look to the entire
statutory scheme and elsewhere to ascertain the legislative intent and
purpose. The statute must be construed in its entirety, and it should be
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assumed that the legislature used each word purposely and that those words
convey some intent and have a meaning and a purpose. The background,
purpose, and general circumstances under which words are used in a statute
must be considered, and it is improper to take a word or a few words from
its context and, with them isolated, attempt to determine their meaning.
Eastman Chemical Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004) (citations
omitted).
We therefore begin, as we must, with the language of the relevant statute,
Tennessee Code Annotated section 36-4-102, which provides the following procedure
applicable to requests for legal separation:
A party who alleges grounds for divorce from the bonds of matrimony may,
as an alternative to filing a complaint for divorce, file a complaint for legal
separation. Such complaint shall set forth the grounds for legal separation
in substantially the language of § 36-4-101 and pray only for legal
separation or for such other and further relief to which complainant may
think to be entitled. The other party may deny the existence of grounds for
divorce but, unless the other party specifically objects to the granting of an
order of legal separation, the court shall declare the parties to be legally
separated.
Tenn. Code Ann. § 36-4-102(a). Upon the entry of a decree of legal separation, the court
“may provide for matters such as child custody, visitation, support and property issues
during legal separation upon motion by either party or by agreement of the parties.” Id. §
36-4-102(c). Thus, the parties to a legal separation are expressly authorized by the statute
to enter into an agreement providing for issues of support “during legal separation[.]” Id.
After the parties have been legally separated for a period of two or more years, one party
may seek a an absolute divorce; in that event, the statute mandates that the “[t]he court
granting the divorce shall make a final and complete adjudication of the support and
property rights of the parties.” Id. § 36-4-102(b).
According to the Tennessee Supreme Court, separation agreements are generally
“not regarded as a final decree in the sense said decree upon petition of the party to
whom it was awarded and proper showing may be changed, amended or modified as
justice and equity may require.” Abney v. Abney, 433 S.W.2d 847, 849 (Tenn. 1968)
(citations omitted). Instead, a legal separation is considered a “temporary statutory
remedy” afforded to parties as an alternative to divorce. Longanacre v. Longanacre, No.
M2012-00161-COA-R3-CV, 2013 WL 183715, at *6 (Tenn. Ct. App. Jan. 16, 2013)
(Clement, J. concurring). Thus, when the trial court grants a divorce following a legal
separation, the Tennessee Supreme Court has held that the trial court is “empowered by
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the [the statute allowing a divorce following two years of legal separation] to adjust the
support and property rights of the parties.” Abney, 433 S.W.2d at 849.
In this case, however, Wife asserts that the Separation Agreement should
constitute a permanent obligation in accordance with its express terms. Specifically, Wife
notes that the Separation Agreement expressly provided that it was intended to “be a
complete and final settlement of all property rights and support rights and obligations of
the respective parties hereto[.]” Moreover, Wife points out that the alimony term
contained therein was expressly non-modifiable; as such, she contends that it did not
merge into the court decree and remained solely governed by contract law. Cf. Vick v.
Hicks, No. W2013-02672-COA-R3-CV, 2014 WL 6333965, at *4 (Tenn. Ct. App. Nov.
17, 2014) (holding that parties were free to agree by contract that an otherwise modifiable
alimony obligation was non-modifiable). Based on the plain language of the contract,
Wife argues that the trial court was not authorized to relieve Husband of his alimony
obligation.
Husband counters that while the Separation Agreement does constitute a contract,
its only purpose was to provide for the parties during the separation, as allowed by
section 36-4-102(c). In support, Husband notes that the Separation Agreement contains
no provision stating that its terms will be conclusive upon any future divorce. Instead,
Husband contends that the trial court was required by section 36-4-102(b) to make a fresh
“final and complete adjudication” as to issues of support upon the filing of the divorce.
A dispute concerning whether a separation agreement should be conclusive upon
divorce, though uncommon, has been previously addressed by this Court on a few
occasions. Indeed, both parties recognize that this Court’s decision in Joiner v. Joiner,
No. M1999-01721-COA-R3-CV, 2001 WL 329529 (Tenn. Ct. App. Mar. 28, 2001),
represents the seminal, though unreported, case on this issue. In Joiner, both spouses
sought a legal separation and asked the trial court to incorporate a previously drafted
separation agreement into the court’s order of legal separation. Joiner, 2001 WL 329529,
at *1. At the time, both spouses sought the legal separation as a temporary measure that
would insure that the wife could remain on the husband’s health insurance until she
became eligible for Medicare. Id. After the wife became eligible for her own health
insurance, the separation agreement stated that a divorce would follow the legal
separation. Id. The agreement further provided for alimony to the wife, until her death or
remarriage, or the husband’s death. The trial court conducted a hearing on the agreement
and entered an order of legal separation incorporating the parties’ separation agreement.
Following the wife’s eligibility for her own insurance and the purported
conversion of the separation to an absolute divorce, she filed a motion to set aside the
“final judgment” of divorce. The trial court denied the motion and an appeal followed.
This Court held that the trial court could not enter an absolute divorce following a decree
of separation without a petition for such relief being filed. Id. at *2 (citing Joiner v.
Joiner, No. 01A01-9710-CH-00593, 1998 WL 426887, at *2 (Tenn. Ct. App. July 29,
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1998) (hereinafter, “Joiner I”)). As such, we vacated the trial court’s order granting an
absolute divorce and remanded for further proceedings. Id. (citing Joiner I, 1998 WL
426887, at *2).
After remand from this Court, the husband filed a complaint for absolute divorce,
noting that all matters had been previously resolved. Id. at *3. The wife filed a counter-
complaint for divorce but submitted that the separation agreement was not binding in the
divorce pursuant to section 36-4-102(b). As such, the wife argued that the trial court was
required to hold an evidentiary hearing to make a fresh determination of alimony upon
divorce. Eventually, the trial court ruled that while a hearing is “often necessary” to
convert a legal separation to an absolute divorce, a hearing was not required in this case
because “the agreement between the parties was intended to be final and had been
approved by the court.” Id. at *3.
The wife appealed to this Court, which affirmed the decision of the trial court. In
reaching this result, the court first rejected Wife’s argument that section 36-4-102’s
requirement that the court “granting the absolute divorce shall make a final and complete
adjudication of the support and property rights of the parties” mandates an evidentiary
hearing in all instances. Rather, the court held that only an “adjudication” is required by
the statute, which may be based on arguments, briefs, and review of prior proceedings,
particularly where no new evidence is alleged. Id. at *4 (noting that the wife “did not
allege any new facts which would require new evidence”). The court provided further
guidance as to when no evidentiary hearing may be necessary:
Although in most cases an evidentiary hearing will be required at the time
an absolute divorce is awarded, that is not always true. In many cases, an
order granting a [legal separation] is not intended to make final disposition
of the parties’ property. In those situations, the parties seek a legal
separation without knowledge that a reconciliation will not be successful.
Then, property distribution and support awards at the beginning of a legal
separation are not intended to be a final adjudication of such issues if a
reconciliation does not occur. . . .[A] hearing is usually necessary for a re-
examination of the temporary award of property and support made upon the
grant of divorce from bed and board.
Id. Because the parties initially sought an absolute divorce and agreed to such divorce
mere months before the divorce was supposed to be effective, the court held that the
separation agreement’s provisions were “intended to be final.” Id. Moreover, the court
noted that the trial court had previously held “a complete evidentiary hearing regarding
both Wife’s capacity at the time of the agreement and the fairness of the agreement
itself.” Id. The Court therefore concluded that the trial court “made a ‘final and complete
adjudication of the support and property rights of the parties.’“ Id. (quoting Tenn. Code
Ann. § 36-4-102).
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In support of this conclusion, the Joiner panel distinguished a previous case that
had come to an opposite conclusion, Meriwether v. Meriwether, (no Court of Appeals
number assigned) (Tenn. Ct. App. Dec. 28, 1979). In Meriwether, the husband and wife
were legally separated by court decree. Joiner, 2001 WL 329529, at *5 (citing
Meriwether, at *1). More than two years later, Husband filed a complaint for absolute
divorce. Id. (citing Meriwether, at *2). The trial court, with a different judge presiding,
eventually approved the complaint for absolute divorce, ruling that the previously entered
decree of separation awarding alimony would be conclusive in the divorce. Id. (citing
Meriwether, at *2-*3).
The wife appealed, raising a similar argument to the wife in Joiner that the trial
court was required to hear proof regarding the support obligation in order to grant the
absolute divorce. Id. (citing Meriwether, at *3–*4). Unlike in Joiner, however, we
reversed the decision of the trial court, noting that “the successor judge had no access to
the information presented to the predecessor except through the recitations of the bed and
board decree.” Id. (citing Meriwether, at *4). In reaching this result, we noted that the
record did not show that the judge in the legal separation hearing had complete
information concerning the parties’ property and income or that the trial judge had
intended its final decree to be a final division of property upon divorce. Id. (citing
Meriwether, at *4). Finally, we “observed that, because a [legal separation] is generally
considered a temporary arrangement to provide for the needs of the parties and to
encourage reconciliation, upon conversion from a [legal separation] to an absolute
divorce, a court should re-examine the support and property rights of the parties in light
of the impending permanent dissolution.” Id. (citing Meriwether, at *6).
The Joiner court recognized that its result was inconsistent from the result reached
in Meriwether, but noted that such inconsistencies were borne of the disparate situations
presented in each case. Id. First, the court found important the fact that the same trial
judge had presided over both the legal separation and the divorce. Thus, unlike in
Meriwether, the trial judge was “quite familiar with the parties’ holdings and income,
having already visited the agreement twice, first at the original hearing and again on
Wife’s motion to set aside.” Id. Second, the Joiner court noted that the separation
agreement in that case was clearly made in anticipation of divorce with no hope of
reconciliation. As such, the court held that Meriwether was not a bar to the trial court’s
decision to enforce the Separation Agreement at the time of the absolute divorce. Id. at
*6.
In our view, the Joiner court relied on two inter-related factors in order to
determine whether a separation agreement would be conclusive as to issues of property
and alimony upon a future action for absolute divorce: (1) whether the agreement was
intended to be a final adjudication of the parties rights upon divorce; and (2) whether a
full hearing was conducted on the fairness of the hearing in light of the parties’ property
and income, and if so, whether the same trial judge that entered the separation order
presides over the divorce.
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Turning to the circumstances at issue in this case, we note that one issue is sharply
disputed: whether the parties intended the settlement agreement to be a final adjudication
of alimony upon divorce. Wife relies largely on the express terms of the Separation
Agreement, which explicitly states that it constitutes a final adjudication of the parties’
respective rights “arising out of their marital relationship[.]” Moreover, Wife points to
her own testimony of her understanding of the Separation Agreement, which she believed
was to continue ““indefinitely[.]” According to Husband, however, the parties did not
intend for the Separation Agreement to be conclusive upon divorce. In support, he cites
his testimony regarding his intent when the contract was executed, as he testified that at
that time he contemplated reconciliation, rather than divorce. Husband also points to the
nine-year delay between the separation order and the divorce and the conspicuous failure
to include any mention of divorce in the Separation Agreement.
The issue of the full and final adjudication is also in dispute in this case. Husband,
however, notes that no evidentiary hearing was ever conducted relative to entry of the
Separation Agreement. Wife does not appear to dispute that no evidentiary hearing
occurred; instead, Wife points to the language of the trial court’s order granting the legal
separation, which contains a specific finding that “the parties have made adequate and
sufficient provision by written agreement for the equitable settlement of any property
rights between the parties” as well as “the support and maintenance of their minor
children.” We note, however, that while the trial court made affirmative findings as to the
equity of the issues of property settlement and child support, no such express finding is
included with regard to alimony.1 Moreover, there can be no dispute that the trial judge
presiding over the legal separation was not the same trial judge that presided over the
divorce.
Considering the totality of the circumstances, we must conclude that the Joiner
opinion supports the trial court’s decision to consider Wife’s alimony request anew upon
the filing of the complaint for absolute divorce. In a case following the Joiner opinion,
we held that it is generally “premature to address the type of support to which [a spouse]
may be entitled” upon divorce in an action solely for legal separation.” Hooberry v.
Hooberry, No. M2011-01482-COA-R3-CV, 2012 WL 2356127, at *4 (Tenn. Ct. App.
1
The trial court’s findings in the order of legal separation appear to be an effort to comply with
the mandates of Tennessee Code Annotated section 36-4-103 (b), which provides that
No divorce shall be granted on the ground of irreconcilable differences unless the
court affirmatively finds in its decree that the parties have made adequate and sufficient
provision by written agreement for the custody and maintenance of any children of that
marriage and for the equitable settlement of any property rights between the parties.
Although the trial court’s ruling certainly complies with this mandate to the extent that it is
applicable, it is not dispositive of the question of whether the trial court presiding over the divorce was
required to enforce the Separation Agreement nearly ten years later upon divorce when there is no dispute
that the separation order was not preceded by an evidentiary hearing.
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June 20, 2012). In another case, we explained that “where possible and practical, it is
better practice to defer permanent disposition of property and alimony until a permanent
disposition is made of the marital status of the parties.” Hutton v. Hutton, 584 S.W.2d
670, 672 (Tenn. Ct. App. 1979). Thus, we do not presume that an obligation created at
the time of separation was intended to be conclusive upon divorce without specific
evidence that compels such a conclusion.
Here, the language of the Separation Agreement expressly states that it is a final
adjudication of the parties rights arising from their marriage, but unlike the agreement in
Joiner, the contract is somewhat ambiguous whether a divorce was actually contemplated
at the time the contract was executed. Likewise, nothing in the order of separation entered
by the trial court indicates that the trial court contemplated a divorce at the time it
approved the Separation Agreement. The record also reflects that the trial court in the
separation proceeding did not hold an evidentiary hearing to determine the fairness of any
alimony award and did not make an express finding that the alimony award was analyzed
and considered “adequate and sufficient” under the circumstances. Finally, the trial judge
who was asked to enter the order of absolute divorce did not preside over the separation
proceeding and therefore had no familiarity with the parties or their respective financial
situations. As such, the factors that led the Joiner court to enforce the Separation
Agreement upon a later action for absolute divorce are simply not present in this case.
Generally, we enforce contracts between the parties and will not relieve a party
from their poor judgment in entering into a bad agreement. See White v. Motley, 63 Tenn.
544, 549 (Tenn. 1874) (“Courts . . . are not constituted to relieve parties of a bad bargain,
or to alter or modify their contracts, to conform to changed conditions and
circumstances.”). In divorces, however, the court performs a special role to ensure that
agreements are “equitable and legally sufficient” pursuant to the mandates of the
applicable divorce statutes. Gibbs, 2016 WL 4697433, at *4. As such, agreements
entered by the parties are not binding on the divorce court, but only evidential in value.
See Osborne, 197 S.W.2d at 236.2 Thus, had this been a simple divorce in which the
parties presented the trial court with a martial dissolution agreement, the trial court would
have been required to reconsider the obligations thereunder before granting an absolute
divorce.
The fact that a legal separation had been granted nearly ten years prior, without
any evidentiary hearing concerning the parties’ finances, without any order indicating the
previous trial judge’s intent to apply the Separation Agreement to a future divorce, and
without any express finding that the alimony award was appropriate simply does not
deprive the trial court of its ability to make such a determination. Indeed, the separation
2
Importantly, this case involves whether to reconsider issues of alimony upon divorce as required
by the legal separation statute. Post-divorce actions to enforce marital dissolution agreements that were
incorporated into final decrees of divorce are therefore inapposite to the case-at-bar. See, e.g., Myrick v.
Myrick, No. M2013-01513-COA-R3-CV, 2014 WL 2841080, at *1 (Tenn. Ct. App. June 19, 2014)
(involving a post-divorce request to terminate alimony).
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statute mandates that the divorce court “make a final and complete adjudication of the
support and property rights of the parties.” We have previously held that this statute often
requires an evidentiary hearing unless the circumstances indicate otherwise. See Joiner,
2001 WL 329529, at *5. Under the particular circumstances of this case, we cannot
conclude that the trial court erred in performing its duty under the relevant statute by
making its own determination as to whether Wife was entitled to an award of alimony
under the applicable statutes given the present circumstances. The trial court’s decision
not to enforce the alimony provision contained in the Separation Agreement is therefore
affirmed. All remaining issues related to the enforcement of the Separation Agreement
and whether a material change in circumstances warranted a modification of the
agreement are therefore pretermitted. See In re Jamie B., No. M2016-01589-COA-R3-
PT, 2017 WL 2829855 at *8 (Tenn. Ct. App. June 30, 2017) (noting that when appellate
courts are presented with multiple issues on appeal and find one to be dispositive, the
remaining issues have consistently been found as pretermitted).
We next address Wife’s contention that the trial court erred in failing to award her
alimony in futuro under Tennessee Code Annotated section 36-5-121. The statute
provides that, in an action for divorce, a court may award alimony “to be paid by one
spouse to or for the benefit of the other, or out of either spouse’s property, according to
the nature of the case and the circumstances of the parties.” Tenn. Code Ann. § 36-5-
121(a). Four types of alimony are recognized in Tennessee: (1) alimony in future, (2)
alimony in solido; (3) rehabilitative alimony, and (4) transitional alimony. Gonsewski v.
Gonsewski, 350 S.W.3d 99, 107 (Tenn. 2011) (citing Tenn. Code Ann. § 36-5-121(d)(1)).
In this case, Wife confines her request to alimony in futuro. This type of alimony “is
intended to provide support on a long-term basis when there is relative economic
disadvantage and rehabilitation is not feasible. Id. (citing Tenn. Code Ann. § 36-5-
121(f)(1)). Alimony in futuro, however, cannot “guarantee that the recipient spouse will
forever be able to enjoy a lifestyle equal to that of the obligor spouse,” as “[i]n many
instances, the parties’ assets and incomes simply will not permit them to achieve the
same standard of living after the divorce as they enjoyed during the marriage.” Id.
In determining whether to award alimony and, if so, the nature, amount, and
duration of such an award, courts must consider the following factors:
(1) The relative earning capacity, obligations, needs, and financial
resources of each party, including income from pension, profit sharing or
retirement plans and all other sources;
(2) The relative education and training of each party, the ability and
opportunity of each party to secure such education and training, and the
necessity of a party to secure further education and training to improve such
party’s earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
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(5) The physical condition of each party, including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek
employment outside the home, because such party will be custodian of a
minor child of the marriage;
(7) The separate assets of each party, both real and personal, tangible and
intangible;
(8) The provisions made with regard to the marital property, as defined in §
36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible
contributions to the marriage as monetary and homemaker contributions,
and tangible and intangible contributions by a party to the education,
training or increased earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in its
discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between the parties.
Tenn. Code Ann. § 36-5-121(i). Careful adherence to the statutory framework when
considering a request for alimony “fulfills not only the statutory directives but also
alimony’s fundamental purpose of eliminating spousal dependency when possible.”
Gonsewski, 350 S.W.3d at 110.
Decisions concerning alimony are “factually driven and involve[] the careful
balancing of many factors.” Id. at 105 (footnote omitted). As such, “‘[a]ppellate courts
are generally disinclined to second-guess a trial judge’s spousal support decision.’” Id.
(quoting Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn.Ct.App.1998)). We therefore
apply the abuse of discretion standard to our review of the trial court’s decision. Id.
(citing Robertson v. Robertson, 76 S.W.3d 337, 340–41 (Tenn. 2002)). As the Tennessee
Supreme Court has explained,
An abuse of discretion occurs when the trial court causes an injustice by
applying an incorrect legal standard, reaches an illogical result, resolves the
case on a clearly erroneous assessment of the evidence, or relies on
reasoning that causes an injustice. This standard does not permit an
appellate court to substitute its judgment for that of the trial court, but
“‘reflects an awareness that the decision being reviewed involved a choice
among several acceptable alternatives,’ and thus ‘envisions a less rigorous
review of the lower court’s decision and a decreased likelihood that the
decision will be reversed on appeal.’” Consequently, when reviewing a
discretionary decision by the trial court, such as an alimony determination,
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the appellate court should presume that the decision is correct and should
review the evidence in the light most favorable to the decision.
Id. (citations omitted).
In the present case, the trial court analyzed the statutory factors and determined
long-term alimony was inappropriate. As the trial court noted in its order, Wife “is able to
work, is well educated, has experience in the working world, has substantial separate
assets from which to earn investment income,” and has gratuitously supported her three
adult children when they stay at her home for extended periods. Upon review of the trial
court’s decision, we must conclude that Wife failed to show an abuse of discretion in the
trial court’s decision.
After a 32-year marriage, Husband and Wife are less than two years apart in age,
have bachelor’s degrees, and were in relatively stable health at the time of the divorce
trial. See Tenn. Code Ann. § 36-5-121(i)(2)-(5). Both are employed, though Husband has
a larger annual income than Wife and a larger pension and social security retirement
benefit. See Tenn. Code Ann. § 36-5-121(i)(1). While Husband has greater earning
potential than Wife in the near future, Wife has substantial financial resources that have
not been utilized since the legal separation. Id. Each of the children has reached
adulthood, so there is no impediment for either spouse to work outside the home. See
Tenn. Code Ann. § 36-5-121(i)(6). Wife also owns the marital home after Husband
signed a quitclaim deed before the legal separation, while Husband has lived in small
apartments and spare rooms since the separation. See Tenn. Code Ann. § 36-5-121(i)(7),
(9). While neither party likely maintained the marital standard of living upon separation,
Husband’s alimony obligations required him to more dramatically decrease his standard
of living when compared to Wife. Id. The marital property was largely divided at the
time of the legal separation, with the limited exception of tangible personal property that
Husband believed was still at the marital home. See Tenn. Code Ann. § 36-5-121(i)(8).
During the marriage, Husband worked outside the home, while Wife largely home-
schooled their children as both parties had agreed. See Tenn. Code Ann. § 36-5-
121(i)(10). The divorce was granted based on the nearly 10 years of separation at the time
of the divorce trial and did not include specific fault of the parties. See Tenn. Code Ann.
§ 36-5-121(i)(11). While transitional alimony may have been warranted when the
separation began, this Court sees no need to continue alimony when Wife is working and
has greater access to funds than Husband. See Tenn. Code Ann. § 36-5-121(i)(12). While
Husband has a greater annual income than Wife, Wife is not dependent on Husband for
income and may still be better suited than Husband to maintain the standard of living that
both had during the marriage. At the very least, reasonable people could disagree
whether alimony of any sort is warranted, given that both parties have access to income
or assets that the other one does not. Therefore, the trial court did not abuse its discretion
in failing to award alimony to Wife.
I. Arrearage
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In a separate claim, Wife questioned whether the trial court erred in holding that
Husband’s payments to Wife in excess of alimony and child support satisfied Husband’s
financial obligations under the parenting plan. In particular, Wife argues on appeal that
Husband failed to pay $53,456.00 in home schooling and extracurricular activities.
Although Wife admits that Husband made additional payments of $71,200.00 beyond his
alimony and child support obligations, Wife argues that these payments should not be
considered as meeting his obligation to pay school expenses because Husband did not
designate these payments as meant to compensate for those expenses.3
This issue involves the trial court’s findings of fact, so this Court will review these
issues de novo with a presumption of correctness, unless the preponderance of evidence
indicates otherwise. Tenn. R. App. P. 13(d); Church v. Church, 346 S.W.3d 474, 481
(Tenn. Ct. App. 2010). Under this standard, great weight is given to the trial court’s
determinations of credibility. Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
Importantly to this case, this Court also gives “great weight to a trial court’s factual
findings that rest on determinations of credibility.” Nashville Ford Tractor, Inc. v. Great
Am. Ins. Co., 194 S.W.3d 415, 424 (Tenn. Ct. App. 2005) (citing In re Estate of Walton,
950 S.W.2d 956, 959 (Tenn. 1997)); B & G Constr., Inc. v. Polk, 37 S.W.3d 462, 465
(Tenn. Ct. App. 2000)). “Appellate courts will not re-evaluate a trial judge’s assessment
of witness credibility absent clear and convincing evidence to the contrary.” Wells v.
Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999) (citations omitted).
The spouse attempting to recover a judgment for unpaid child support possesses
the burden of proving that the amount is due. Pirrie v. Pirrie, 831 S.W.2d 296, 298−99
(Tenn. Ct. App. 1992). “A petition to recover unpaid child support ‘is essentially a
proceeding to collect a judgment. In such cases, the plaintiff has the burden of proving
the judgment and its validity, but the defendant has the burden of proving affirmative
defenses, including payment.’” In re Estate of Miller, No. E2012-00648-COA-R3-CV,
2013 WL 221579 at *4 (Tenn. Ct. App. Jan. 22, 2013) (quoting Cagle v. Davis, No. 89-
40-II, 1989 WL 44921, at *5 (Tenn. Ct. App. May 5, 1989)).
The trial court made the following findings with regard to this claim:
In the aggregate, Husband paid Wife $71,200.00 more than the total
of his alimony and child support obligations. Wife does not dispute that she
received this additional money, she merely asserts Husband should not
receive any credit for these payments against any specific obligation. In
short, Wife regards these extra payments as “found money” or as some sort
of entitlement.
3
Wife initially demanded $107,461.62 in payments from Husband, though that figure included
alleged college obligations that Wife non-suited at the beginning of trial.
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Although neither party can definitively account for payments made
against specific invoices, the aggregate amount of money Husband paid to
Wife over and above his alimony and child support obligations exceeds the
total amount Wife claims Husband owes for medical expenses, and
extracurricular home school expenses.
Wife has failed to carry her burden of proof, and will not be awarded
a judgment against Husband for alleged arrearages on support obligations.
Wife raises the same argument on appeal, contending that Husband never intended
for his extra payments of $71,200.00 to be directed to his child support obligations.
Instead, she argues that Husband’s payments were gratuitous efforts to compensate for
prior tax obligations and investment losses and to assist in the continued care of her adult
children. Wife contends that the facts related to this issue are undisputed to an extent that
this Court should not presume the trial court’s correctness and instead consider this issue
as a question of law with no presumption of correctness. See Hamblen County Educ.
Ass’n v. Hamblen County Bd. of Educ., 892 S.W.2d 428, 431 (Tenn. Ct. App. 1994)
(“Where, as here, the operative facts are not in dispute, the issue before us becomes a
question of law for our determination.”). Respectfully, we do not agree.
At trial, Husband testified that the additional funds he provided to Wife were
usually not designated for a specific purpose. At times, he made general comments that
the money was meant to cover college expenses, healthcare costs, or prior tax obligations
or investment losses. Husband continued to make child support payments years after his
children reached the age of majority and made 100 percent of healthcare payments for the
family up to the time of the trial. Wife, however, argued that the payments were not
specifically targeted toward Husband’s child support obligations and were instead meant
to help support the family and compensate for previous financial misdeeds. Wife never
told Husband where his payments were going or that she believed that he was failing to
meet his financial obligations under the parenting plan. In any case, Husband continued
to pay child support after each of his children reached the age of majority, and Wife
largely accepted the money, allegedly without allocating it towards his parenting plan
obligations, even after the children were no longer homeschooled and pursuing
extracurricular activities. From our review of the record, Wife saw this money as a way
to broadly support their children as they went to college and occasionally resided at the
marital home with her.
Based on the foregoing, it is clear that the parties presented divergent testimony as
to the nature of these payments. We simply do not countenance Wife’s argument that
because each and every payment was not accompanied by an express statement that it
represented payment under the parenting plan that it was not intended as, and could not
constitute, such a payment. Because of the disputes of fact between the parties, this Court
operates under a presumption that the trial court’s findings are correct. See Walton, 950
S.W.2d at 595; Nashville Ford Tractor, Inc., 194 S.W.3d at 424. This presumption is
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especially true of those findings that rest on credibility, which will not be overturned
absent clear and convincing evidence to the contrary. See Wells, 9 S.W.3d at 783.
The trial court specifically found that Wife was not credible as to her discussion of
her finances. Although the trial court did not make a specific credibility finding against
Wife as to her explanation of the extra payments made by Husband, as previously noted,
the testimony on this issue was sharply disputed. In finding in favor of Husband, the trial
court implicitly credited Husband’s testimony over that of Wife. Credibility findings need
not be express, but “may be inferred from the manner in which the trial court resolves
conflicts in the testimony and decides the case.” Richards v. Liberty Mut. Ins. Co., 70
S.W.3d 729, 733–34 (Tenn. 2002). Thus, the trial court’s factual findings as to this issue
clearly rest on the credibility of Husband as compared to Wife.
Given the trial court’s credibility findings in favor Husband, Wife’s claims that
Husband should not receive credit for the additional funds that were provided to Wife are
not compelling. Much of the $71,200.00 that Husband paid in excess of his support
obligations resulted from Husband continuing to make child support payments after his
children reached the age of majority. While neither party provided complete instructions
about how the money should be used or clearly documented the extent or use of the
funds, Wife’s argument that the money should not be directed toward any outstanding
child support obligations seems to ignore how the same child support payments were
directed in the past. Neither this Court nor the trial court “is [] required to check common
sense at the courthouse door.” Dattel Family Ltd. P’ship v. Wintz, 250 S.W.3d 883, 892
(Tenn. Ct. App. 2007). In this case, the trial court compared the arguments of Husband
and Wife and found Husband’s to be more compelling. Further, the trial court had
explicit doubts about Wife’s credibility regarding her finances and implicit issues
concerning her broader credibility concerning time and money. Considering the evidence
as whole, we therefore cannot conclude that the evidence preponderates against the trial
court’s ruling on this issue.
II. Attorney’s Fees
Wife contends, if she prevails in any part of the decision, that the trial court erred
in not awarding her attorney’s fees as outlined under the Separation Agreement. On the
same basis, Wife contends that should she prevail in this appeal, she should be awarded
her attorney’s fees incurred in this Court. In support, Wife points to the Separation
Agreement, which states, in a legal dispute to enforce the agreement, that “the successful
party shall be entitled to a judgment for reasonable expenses, including attorney’s fees,
and court costs, incurred in prosecuting the action.” “Our courts long have observed at
the trial court level that parties are contractually entitled to recover their reasonable
attorney’s fees when they have an agreement that provides the prevailing party in a
litigation is entitled to these fees.” Eberbach, 535 S.W.3d at 478 (citations omitted). As
Wife did not prevail at the trial court or on appeal, she is not entitled to attorney’s fees
under the terms of the Separation Agreement either in the trial court on appeal. The trial
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court therefore did not err in refusing to award Wife attorney’s fees at trial. We likewise
decline to do so on appeal.
Husband also seeks an award of attorney’s fees incurred on appeal pursuant to
Tennessee Code Annotated section 36-5-103(c). When the divorce was filed in 2016, that
statute provided for the following:
The plaintiff spouse may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded
may recover from the other spouse reasonable attorney fees incurred in
enforcing any decree for alimony and/or child support, or in regard to any
suit or action concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the original
divorce hearing and at any subsequent hearing, which fees may be fixed
and allowed by the court, before whom such action or proceeding is
pending, in the discretion of such court.
Tenn. Code Ann. § 36-5-103(c) (2014). This section of the statute was later amended in
2018, and Husband cites the 2018 version of the law in support of his request for
attorney’s fees on appeal.4 Regardless of which version of the statute is applicable in this
case, an award of attorney’s fees thereunder remains in this Court’s discretion. See Tenn.
Code Ann. § 36-5-103(c) (2014) (noting that fees may be allowed “in the discretion of
such court”); Tenn. Code Ann. § 36-5-103(c) (2018) (noting that fees may be allowed “in
the court’s discretion”); see also Eberbach v. Eberbach, 535 S.W.3d 467, 477 (Tenn.
2017) (holding that for a request under section 36-5-103(c), “the Court of Appeals should
analyze any such request by exercising its discretion to determine whether an award to
the prevailing party is appropriate”). After a review of the circumstances at issue, we
exercise our discretion to decline an award of attorney’s fees. While Wife possesses
considerable assets, Husband’s ability to earn income outstrips Wife’s ability. Moreover,
it appears that Wife continues to at times support the parties’ minor children, without
objection from Husband. We are therefore not persuaded to grant an award of attorney’s
fees to Husband.
4
The 2018 version of the statute provides that
A prevailing party may recover reasonable attorney’s fees, which may be fixed
and allowed in the court’s discretion, from the non-prevailing party in any criminal or
civil contempt action or other proceeding to enforce, alter, change, or modify any decree
of alimony, child support, or provision of a permanent parenting plan order, or in any suit
or action concerning the adjudication of the custody or change of custody of any children,
both upon the original divorce hearing and at any subsequent hearing.
Tenn. Code Ann. § 36-5-103(c) (2018); see also 2018 Tenn. Laws Pub. Ch. 905 (H.B. 2526), eff.
July 1, 2018.
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CONCLUSION
The judgment of the Chancery Court of Williamson County is affirmed in all
respects. This cause is remanded to the trial court for all further proceedings as are
necessary and consistent with this Opinion. Costs of this appeal are taxed to Appellant
Shelia Long Pless, for which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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